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ISCR Case 10-07310.a1 — CASE

ISCR Case 10-07310.a1denied

Case Headnote

ISCR Case No. 10-07310.a1

Mar 30, 2012· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guidelines E (Personal Conduct) and G (Alcohol Consumption). The denial stemmed from a long history of excessive alcohol use, including multiple arrests for Driving Under the Influence (DWI) between 1983 and 2005. A particularly serious incident in 2005 led to felony charges.

The judge found that the applicant's alcohol consumption to the point of intoxication spanned from approximately 1975 to May 2010. Additionally, the applicant omitted significant information from his security clearance application, which further contributed to the security concerns.

While the applicant presented some mitigating evidence, it was deemed insufficient to overcome the disqualifying conditions related to his alcohol consumption and personal conduct. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 21raisedAlcohol Consumption
AG ¶ 14raisedPersonal Conduct

Mitigating

AG ¶ 23rejectedAlcohol ConsumptionThe judge found the applicant's participation in counseling and favorable work performance insufficient to mitigate the security concerns.
AG ¶ 17rejectedPersonal ConductThe judge determined that the applicant's omissions and conduct outweighed any mitigating evidence.

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 issuedMay 25, 2011
Answer filed—
Hearing heldDec 30, 2011
Decision dateMar 30, 2012

Cite For

Disqualifying Conditions Under Guidelines E and G Due to Alcohol-related Conduct
Insufficient Mitigating Evidence in Cases of Long-term Alcohol Abuse
The Standard for Granting Security Clearance Related to National Security Interests

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 alcohol consumption and personal conduct issues. The applicant argued that the Judge's decision was arbitrary and capricious, but the Board found that the Judge's findings were supported by substantial evidence and that the decision was reasonable. The Board affirmed the denial of the security clearance.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDavid M. White — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline E

What the Board reviewed

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

Why the Board ruled this way

The Board concluded that the Judge's findings were sustainable and that the Judge reasonably explained why the mitigating evidence was insufficient to overcome the government's security concerns.

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
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; Guideline E DIGEST: The Judge made sustainable findings that Applicant had consumed alcohol at times to excess and to the point of intoxication from approximately 1975 to at least may 2010 and had been arrested and prosecuted on multiple occasions for DWI. The Judge reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. Adverse decision affirmed. CASENO: 10-07310.a1 DATE: 03/30/2012 DATE: March 30, 2012 In Re: ------------------------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-07310

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 May 25, 2011, DOHA issued a statement of reasons (SOR) 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 December 30, 2011, after the hearing, Administrative Judge David M. White 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 essentially that the evidence demonstrates that Applicant has mitigated the government’s security concerns. In support of his argument, he presents a detailed summary of the evidence presented at the hearing—emphasizing what he has learned from his experience, and the fact that he attended counseling and received a favorable assessment. He also submits a statement about changes in his situation subsequent to the hearing, which the Board cannot consider on appeal. See Directive ¶ E3.1.29. Applicant’s presentation does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. 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. 10-04042 at 2 (App. Bd. Oct. 4, 2011). In this case, the Judge made sustainable findings that Applicant had consumed alcohol at times in excess and to the point of intoxication from approximately 1975 to at least May 2010, and had been arrested and prosecuted on multiple occasions for Driving Under the Influence between 1983 and 2005. In the 2005 incident, which resulted in two felony charges, Applicant had been driving with a Blood Alcohol Content of more than twice the legal limit and had hit a stopped motorcycle. In an incident in 2009, Applicant had become intoxicated and disruptive on an airplane and had to be escorted off the plane by airport police. Decision at 2-5, and 7. The Judge also made sustainable findings that Applicant had deliberately omitted information of security significance from his security clearance application. Id. at 5 and 9. These incidents were sufficient to establish the government’s security concerns under Guidelines G and E, and to shift the burden of mitigation to Applicant. A review of the decision indicates that the Judge weighed the mitigating evidence offered by Applicant, including his participation in counseling and his favorable work performance, against the length and seriousness of the disqualifying conduct, and considered the possible application of relevant conditions and factors. Id. at 7-10. The Judge reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns—noting in particular that Applicant had resumed drinking after completion of alcohol treatment in 1999, had provided no current favorable prognosis by a qualified medical professional, including the counselor he saw for four sessions in 2011, and that Applicant’s August 2011 assessment of “Insufficient Evidence of Abuse/Dependence” was based on his self-report of only about half of his history of alcohol-related incidents. Id. at 8. 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: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: Willaim S. Fields William S. Fields Administrative Judge Member, Appeal Board