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ISCR Case 09-08248.a1 — CASE

ISCR Case 09-08248.a1denied

Case Headnote

ISCR Case No. 09-08248.a1

Aug 22, 2011· Hon. Jeffrey D. Billett· appeal

Summary

A 32-year-old engineering technician was denied a security clearance under Guideline G (Alcohol Consumption) due to a 17-year history of excessive alcohol use, three alcohol-related arrests, and a diagnosis of alcohol dependence. The appeal board upheld the denial, concluding that the applicant's efforts to mitigate these concerns were insufficient.

Specifically, the applicant failed to adequately address the security risks stemming from his prolonged alcohol consumption and associated legal issues. The evidence presented did not demonstrate a clear resolution of the problems related to his alcohol dependence.

Consequently, the security clearance was denied, as the applicant did not sufficiently mitigate the disqualifying conditions under Guideline G.

Conditions Referenced

Disqualifying

G1raisedAlcohol Consumption

Key Rule Quoted

“Each case must be judged on its own merits . . .”
— Directive, Enclosure 2 ¶ 2 (b)

Procedural Posture

SOR issuedOct 18, 2010
Answer filed—
Hearing heldJun 6, 2011
Decision dateAug 22, 2011

Cite For

Insufficient Mitigation of Alcohol-related Security Concerns
Importance of Individual Case Merits in Security Clearance Decisions
Burden of Proof on Applicant to Establish Mitigation After Government Raises Security Concerns

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 after being denied due to security concerns related to excessive alcohol consumption and a diagnosis of alcohol dependence. The applicant argued that the Judge's decision was arbitrary and capricious, but the Board affirmed the denial, finding that the Judge's decision was supported by substantial evidence and a rational connection to the facts. The appeal was ultimately denied, and the adverse decision was affirmed.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene D. Lokey Anderson — denied the clearance

Decided ona hearing

Guidelines belowGuideline G

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found 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. The Judge's unfavorable security clearance decision was sustainable based on the evidence presented.

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

Jeffrey D. Billett
Jean E. Smallin
William S. Fields

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: Hearing Office decisions are not binding precedent. Applicant failed to mitigate security concerns arising from 17 years of excessive alcohol consumption, 3 arrests, and diagnosis of alcohol dependence. Adverse decision affirmed. CASE NO: 09-08248.a1 DATE: 08/22/2011 DATE: August 22, 2011 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-08248

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 October 18, 2010, 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 June 6, 2011, after the hearing, Administrative Judge Darlene D. Lokey Anderson denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious, or contrary to law. Applicant seeks reversal of the Judge’s adverse decision arguing that the evidence demonstrates that Applicant has mitigated the security concerns raised by his excessive use of alcohol. In support of his argument, he presents a detailed summary of the evidence presented at the hearing and cites to several Hearing Office cases in which applicants with ostensibly similar circumstances received a clearance. Applicant’s presentation does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. In his brief, Applicant acknowledged that during his research he found that “not a great deal of cases like [his] are granted clearances” and the cases he cited have significant differences from his own. Although Hearing Office decisions may be cited as persuasive authority, they are not binding legal precedent which must follow in another situation. Applicant’s reliance on other Hearing Office decisions does not demonstrate that the Judge erred in this case. See, e.g., ISCR Case No. 09-03448 at 2 (App. Bd. May 19, 2011). “The adjudicative process is the careful weighing of a number of variables known as the whole-person concept.” Directive, Enclosure 2 ¶ 2 (a). “Each case must be judged on its own merits . . .” Id at ¶ 2 (b). 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. A party’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. 10-00278 at 2 (App. Bd. Mar. 18, 2011). In this case, the Judge found that Applicant, a 32-year-old engineering technician, had consumed alcohol, at times in excess and to the point of intoxication, from approximately age 14 to at least March of 2010—a span of approximately 17 years. He had been arrested for alcohol- related driving incidents in 1997, 1999, and 2000, and had been evaluated and diagnosed for Alcohol Dependence in about July 2010. Decision at 2, 3, and 6. At the time the case was submitted for decision, Applicant had “only recently acknowledged his alcohol problem, and [had] only about a year of sobriety.” Id. at 7. The Judge weighed the mitigating evidence offered by Applicant—including his efforts at rehabilitation, his favorable work performance and letters of recommendation, and numerous awards and commendations in the Navy—against the length and seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. Id. at 3-7. She reasonably explained why the mitigating evidence was insufficient to overcome all of the government’s security concerns. Id. The Board does not review a case de novo. 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 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). Therefore, the Judge’s unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board