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ISCR Case 15-02659.a1 — CASE

ISCR Case 15-02659.a1denied

Case Headnote

ISCR Case No. 15-02659.a1

Apr 28, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance due to concerns under Guideline G (Alcohol Consumption) and Guideline E (Personal Conduct). The denial stemmed from a long history of excessive alcohol consumption, including three DUI convictions. The applicant had been diagnosed as alcohol dependent but continued to consume alcohol, which the judge found raised significant security concerns regarding his reliability and judgment.

While the applicant presented some mitigating evidence, it was insufficient to overcome the disqualifying conditions. Specifically, the judge applied disqualifying conditions AG ¶ 21 and AG ¶ 15, while also considering mitigating conditions AG ¶ 23 and AG ¶ 17.

Ultimately, the judge concluded that the applicant's ongoing alcohol use and past convictions demonstrated poor judgment. The appeal board affirmed the denial, determining that the judge's decision was not arbitrary or capricious.

Conditions Referenced

Disqualifying

AG ¶ 21raisedAlcohol Consumption
AG ¶ 15raisedPersonal Conduct

Mitigating

AG ¶ 23rejectedAlcohol ConsumptionThe judge found the mitigating evidence insufficient to overcome security concerns.
AG ¶ 17notedPersonal Conduct

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 issuedJan 15, 2016
Answer filed—
Hearing heldFeb 14, 2017
Decision dateApr 28, 2017

Cite For

Evaluation of Mitigating Evidence in Alcohol-related Cases
Impact of Past Alcohol-related Conduct on Security Clearance Decisions
Standards for Appellate Review of 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 was filed by the applicant after the Administrative Judge denied his request for a security clearance based on concerns related to alcohol consumption, personal conduct, and financial considerations. The applicant argued that the Judge did not correctly weigh the evidence in his favor. The Board affirmed the Judge's decision, finding no harmful error in the weighing of evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline GGuideline EGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge’s adverse decision should be reversed because the Judge did not correctly weigh the evidence.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the Judge properly weighed the evidence presented, concluding that the applicant's history of alcohol abuse presented a security concern.

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
James F. Duffy
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; Guideline F DIGEST: Applicant contends that the Judge’s adverse decision should be reversed because the Judge did not correctly weigh the evidence. Applicant’s arguments do not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. Adverse decision affirmed. CASENO: 15-02659.a1 DATE: 04/28/2017 DATE: April 28, 2017 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-02659

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 January 15, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline G (Alcohol Consumption), Guideline E (Personal Conduct), and Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 14, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.1 Applicant raised the following issue on appeal: whether the Judge’s adverse decision is arbitrary, capricious or contrary to law. Applicant contends that the Judge’s adverse decision should be reversed because the Judge did not correctly weigh the evidence. Specifically, he argues that he is not alcohol dependent because he has had no alcohol-related incidents for over seven years. He also argues that the Judge did not give him sufficient credit for the fact that he has served his country for over 17 years in the aerospace industry, has never been late for work, has never been reprimanded for misconduct, and has never showed any form of inability to perform his duties. Appeal Brief at 1. Applicant’s arguments do not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. 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. 14-01918 at 2 (App. Bd. Jul. 8, 2015). In this case, the Judge found that Applicant had a long history of excessive alcohol consumption that included three driving under the influence of alcohol (DUI) convictions between 1999 and 2009. Some of the incidents involved associated charges such as driving on a suspended license or hit-and-run. Applicant received alcohol treatment in 2007 and 2008, and was diagnosed as alcohol dependent. Decision at 2. In reaching his adverse decision, the Judge considered Applicant’s evidence “attesting to his strong moral character, excellent job performance, expertise, work ethic, responsibility, and trustworthiness” and the fact that “his last DUI was more than 9 years ago.” Id. at 3 and 5. However, he noted that Applicant had “exhibited extremely poor judgment on multiple occasions” and that he “currently drinks about two to three beers, four nights a week, and about six to eight beers on the weekend” despite a prior alcohol-dependence diagnosis. Id. at 5. As a result he concluded that Applicant’s alcohol-related conduct “continued to cast doubt on his reliability, trustworthiness, and good judgment” and that there were “no mitigating conditions sufficiently applicable to dispel security concerns about Applicant’s alcohol use.” Id.

In light of the foregoing, the Judge could reasonably conclude that Applicant’s history of alcohol abuse still presented a security concern and that Applicant had not met his burden of persuasion as to mitigation. See, e.g., ISCR Case No. 09-02566 at 2-3 (App. Bd. Nov. 12, 2010). The Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. Decision at 4-7. He found in favor of Applicant under Guideline F and as to several of the SOR factual allegations under Guidelines G and E. However, he reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. Id. The

FOOTNOTES

1 The Judge’s favorable finding under Guideline F is not at issue on appeal. 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. “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.” Therefore, the Judge’s unfavorable security clearance decision is sustainable. Order The decision of the Judge is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board