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ISCR Case 12-00678.a1 — CASE

ISCR Case 12-00678.a1denied

Case Headnote

ISCR Case No. 12-00678.a1

Jun 13, 2014· Hon. Michael Y. Ra'anan· appeal

Summary

A retired U.S. military member was denied a security clearance due to concerns under Guideline J (Criminal Conduct) and Guideline G (Alcohol Consumption). The denial stemmed primarily from a DUI conviction and a subsequent probation violation.

Specific disqualifying conditions cited were J1 (allegations or admissions of criminal conduct) and G2 (alcohol-related incidents away from work). While mitigating condition G2 (successful completion of an alcohol education or treatment program) was considered due to the applicant's engagement in alcohol counseling, it was not sufficient to overcome the security concerns.

The key factors leading to the denial were the applicant's ongoing probation status and the nature of his criminal conduct, specifically the DUI and the probation violation. These issues collectively raised significant security concerns, resulting in the denial of the security clearance.

Conditions Referenced

Disqualifying

J1raisedCriminal Conduct
G2raisedAlcohol Consumption

Mitigating

G2appliedAlcohol Consumption

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 issuedMay 29, 2013
Answer filed—
Hearing heldFeb 12, 2014
Decision dateJun 13, 2014

Cite For

Impact of Ongoing Probation on Security Clearance Eligibility
Evaluation of Criminal Conduct Under Guideline J
Consideration of Rehabilitation Efforts in Security Clearance Decisions

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 allegations under Guideline J and Guideline G. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding the Judge's adverse finding sustainable and the error regarding the probation violation harmless.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRichard A. Cefola — denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline G

What the Board reviewed

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

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's adverse finding regarding the DUI was sustainable and that the error regarding the probation violation was harmless, affirming the overall decision.

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 Ra’anan — Chair
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 J; Guideline G DIGEST: Given the Judge’s sustainable adverse finding regarding one allegation, the error regarding the other allegation is harmless in that it did not affect the overall outcome of the case. Adverse decision affirmed. CASENO: 12-00678.a1 DATE: 06/13/2014 DATE: June 13, 2014 In Re: ----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-00678

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 May 29, 2013, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct) and Guideline G (Alcohol Consumption) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 12, 2014, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Richard A. Cefola denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline G are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant is retired from the U.S. military. While on active duty, he voluntarily entered into alcohol counseling, which he successfully completed. In 2011, after a company party at which he consumed vodka, Applicant drove home. A policeman pulled him over, eventually arresting him for DUI. Part of his sentence was to complete a six month level 2 first offender alcohol program and to undergo informal probation for three years. In May 2012, Applicant was charged with violating the terms of his probation by dropping out of the alcohol program when he moved to another state. Applicant was on probation as of the close of the record. The Judge’s Analysis The Judge concluded that Applicant’s DUI and probation violation raised security concerns under Guideline J. He noted that Applicant remained on probation. Although citing to Applicant’s character references, he stated that he still had doubts about Applicant’s fitness for a clearance.

DISCUSSION

Applicant challenges the Judge’s treatment of the probation violation. We have considered Applicant’s brief in light of the record as a whole. The Judge’s adverse finding under SOR ¶ 1.b (the probation violation) did not address the totality of the evidence, including evidence that tended to mitigate the seriousness of this incident. However, given the Judge’s sustainable adverse finding under ¶ 1.a, this error is harmless in that it did not affect the overall outcome of the case. See, e.g., ISCR Case No. 11-15184 at 3 (App. Bd. Jul. 25, 2013) for definition of harmless error. Applicant cites to record evidence, such as his military service and decorations, his community involvement, and his good duty performance. A Judge is presumed to have considered all of the evidence in the record. See, e.g., ISCR Case No. 10-04413 at 2 (App. Bd. Feb. 16, 2012). Applicant’s appeal brief is not sufficient to rebut this presumption. The Judge examined the relevant data and, except for the harmless error noted above, articulated a satisfactory explanation for the decision. The decision is sustainable on this record. An applicant’s ongoing probationary status is relevant in evaluating the extent to which he or she has demonstrated rehabilitation. See, e.g., ISCR Case No. 05-07983 at 5 (App. Bd. Oct. 1, 2007). “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). See also 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 Decision is AFFIRMED. Signed; Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, 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