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ISCR Case 14-05201.a1 — CASE

ISCR Case 14-05201.a1denied

Case Headnote

ISCR Case No. 14-05201.a1

Aug 5, 2015· Hon. Michael Y. Ra'anan· appeal

Summary

A defense contractor with a high school education was denied a security clearance under Guideline G (Alcohol Consumption). The denial stemmed from a history of alcohol-related offenses, specifically two DUIs, which raised significant security concerns.

The judge determined that the applicant failed to demonstrate responsible alcohol use and did not provide adequate evidence of rehabilitation. Despite the prior incidents, the applicant continued to consume alcohol to the point of intoxication and had not attended counseling or support groups to address these issues.

Ultimately, the applicant's inability to mitigate the concerns outlined in Disqualifying Condition G.2.a, coupled with the ongoing pattern of problematic alcohol use, led to the denial, with the judge emphasizing the paramount importance of national security in such determinations.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Offenses

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 12, 2014
Answer filed—
Hearing heldMay 29, 2015
Decision dateAug 5, 2015

Cite For

Denial Based on History of Alcohol-related Offenses Under Guideline G
Failure to Demonstrate Responsible Alcohol Use as a Security Concern
Importance of National Security in Clearance Determinations

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 related to alcohol consumption. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMark Harvey — 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 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 articulated a satisfactory explanation for the denial of the security clearance. The Board concluded that the Judge did not weigh the evidence in an arbitrary or capricious manner.

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 G DIGEST: The Judge made findings about Applicant’s favorable evidence and discussed that evidence in his Analysis. Applicant’s argument is not enough to rebut the presumption that the Judfge considered all the evidence. Neither is it enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASENO: 14-05201.a1 DATE: 08/05/2015 DATE: August 5, 2015 In Re: ----------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-05201

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On November 12, 2014, DoD 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 May 29, 2015, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Mark Harvey 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. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant works for a Defense contractor. A high school graduate who has a certificate of completion in administrative justice, Applicant’s record contains no evidence of security violations, illegal drug use, or criminal offenses other than DUI. In 2009, Applicant was arrested for DUI, his blood alcohol content (BAC) registering .29%. Applicant was scheduled to report for work as a security guard four hours after the time of his arrest. He stated that he was not sure if he would still have been under the influence of alcohol when starting work. He did not feel like he was under the influence of alcohol at the time of his arrest. Applicant was entered into a first offender program, paid a fine, and underwent three years of unsupervised probation. He was required to watch videos about the impact of DUI. In late 2011, while still on probation, Applicant rear-ended a car during stop-and-go traffic. His BAC was .1%, more than the threshold of .08%. Applicant was sentenced to a fine, restitution, and to an additional three years of probation. He received in-person instruction on the impact of DUI. It was suggested to him that he curtail his consumption of alcohol, although he was not told that he was an alcohol abuser. Applicant has never attended Alcoholics Anonymous (AA), nor has he had alcohol counseling. He drank 64 ounces of beer about a week prior to the hearing, becoming intoxicated. He drinks this amount about once or twice a week. He has not reduced his alcohol consumption since his second DUI, although he is careful not to drink and drive. He does not believe that his alcohol consumption has affected his personal relationships or work. The Judge’s Analysis The Judge concluded that none of the mitigating conditions applied to Applicant’s circumstances. He noted that Applicant has not attended AA or received counseling and that he continues to consume alcohol to the point of intoxication. The Judge concluded that Applicant had not established a pattern of responsible alcohol use, nor had he provided a favorable diagnosis from a medical professional or licensed counselor. The Judge noted that Applicant’s first offense entailed a .29% blood alcohol level just four hours before he was to report for duty as a security guard. In the whole-person analysis, the Judge cited to Applicant’s favorable evidence. He went on to state, however, that driving under the influence of alcohol shows a lack of judgment, rehabilitation, and impulse-control.

DISCUSSION

Applicant cites to some Hearing Office decisions that he believes support his case for a clearance. We have given these cases due consideration as persuasive authority. However, Hearing Office decisions are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 12-08417 at 2 (App. Bd. Jun. 24, 2015). Applicant cites to his favorable evidence, such as his good work record, his lack of security violations, and the length of time since his last DUI. The Judge made findings about Applicant’s favorable evidence and discussed that evidence in the Analysis. Applicant’s argument is not enough to rebut the presumption that the Judge considered all of the evidence in the record. Neither is it enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-01509 at 2 (App. Bd. Jan. 29, 2015). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. “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