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ISCR 11-05684.a1: Guideline G security clearance appeal, denied (2013) · CASE

ISCR Case 11-05684.a1denied

Case headnote

ISCR Case No. 11-05684.a1

Sep 24, 2013· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance due to concerns under Guideline G (Alcohol Consumption) and Guideline H (Drug Involvement). Specifically, Disqualifying Conditions G1 and H1 were raised, indicating a history of alcohol consumption and drug involvement that posed security risks.

The denial was based on the applicant's failure to demonstrate sufficient mitigation of these disqualifying conditions. The appeal board reviewed the case and upheld the initial denial, finding the judge's decision to be well-reasoned and sustainable given the evidence presented.

The board emphasized the applicant's ongoing issues with alcohol and drugs, and the critical need for a clear connection between an individual's conduct and their eligibility for a security clearance. Ultimately, the security clearance was denied.

Conditions referenced

Disqualifying

G1raisedAlcohol Consumption
H1raisedDrug Involvement

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 issuedNov 21, 2012
Answer filed—Applicant requested decision on written record.
Hearing heldJun 17, 2013
Decision dateSep 24, 2013

Cite for

Nexus Between Conduct and Security Eligibility Under Guideline G and H
Burden of Persuasion Shifts to Applicant After Government Raises Security Concerns
Clearance May Only Be Granted When Consistent with 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 concerns under Guideline G (Alcohol Consumption) and Guideline H (Drug Involvement). The applicant argued that the decision was arbitrary and capricious, citing personal circumstances and the nature of alcoholism. The Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry denied the clearance

Decided onthe written record

Guidelines belowGuideline GGuideline H

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
The 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 examined the relevant data and articulated a satisfactory explanation for his decision, affirming that the unfavorable security clearance decision is sustainable.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Y. Ra’anan
Jeffrey D. Billett
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 H DIGEST: The Directive presumes a nexus between proven conduct under any of the Guidelines and an applicant’s security eligibility. Security clearance determinations are not limited to consideration of conduct during duty hours. A good security record is not a bar to an adverse decision. The scope and methods of clearance investigations are, in general, outside the jurisdiction of the Hearing Office and the Appeal Board. Adverse decision affirmed. CASE NO: 11-05684.a1 DATE: 09/24/2013 DATE: September 24, 2013 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-05684

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On November 21, 2012, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline G (Alcohol Consumption) and Guideline H (Drug Involvement) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested that the case be decided on the written record. On June 17, 2013, after considering the record, Defense Office of Hearings and Appeals Administrative Judge Marc E. Curry 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. In his appeal brief, Applicant states that he is very disappointed with the result in his case and asks that the Board reconsider the Judge’s adverse decision. In support of his request, he argues that he and his family are still receiving counseling and that he has a stronger support system in place. He also argues that alcoholism is a disease, that there are many functioning alcoholics, and that there is no connection between alcoholism and being a security threat. Finally, he asserts that the investigator should have spoken with his co-workers and neighbors of AA associates concerning his integrity and dedication to his work. The Directive presumes there is a nexus or rational connection between proven conduct under any of the Guidelines and an applicant’s security eligibility. Security clearance determinations are not limited to consideration of work performance or conduct during duty hours. See, e.g., ISCR Case No. 07-08113 at 3 (App. Bd. Jul. 15, 2008). The federal government need not wait until an applicant actually mishandles or fails to properly handle or safeguard classified information before it can deny or revoke access to such information. See Adams v. Laird, 420 F.2d 230, 238-239 (D.C. Cir. 1969). The absence of security violations does not bar or preclude an adverse security clearance decision. See, e.g., ISCR Case No. 07-08113, supra. In general, the scope and methods of personnel security investigations are outside the scope of review of the Hearing Office Judge and the Board. Moreover, even if an applicant believes that an investigation was incomplete or flawed, he is not without recourse in DOHA proceedings. The applicant can present evidence, either at a hearing or in response to a File of Relevant Material (FORM), that is relevant and material to his response to the SOR allegations and evidence presented by Department Counsel, or supportive of applicant’s burden of persuasion under the Directive. See, e.g., ISCR Case No. 02-05854 at3 (App. Bd. Apr. 15, 2004). 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. 11-07810 at 2 (App. Bd. Aug. 5, 2013). The Board cannot consider new evidence on appeal. See Directive ¶ E3.1.29. Additionally, it 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 his decision. “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 is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Member, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board