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ISCR Case 15-07811.a1 — CASE

ISCR Case 15-07811.a1denied

Case Headnote

ISCR Case No. 15-07811.a1

Apr 13, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A 54-year-old defense contractor was denied a security clearance under Guideline G (Alcohol Consumption) due to a history of alcohol-related incidents, including multiple DUIs. The appeal board identified disqualifying conditions G.2.a and G.2.c, which relate to alcohol consumption that causes impaired judgment and a pattern of alcohol-related incidents.

While the applicant claimed sobriety and participated in an alcohol awareness program, the board found this insufficient to mitigate the security concerns. Although mitigating conditions G.3.a (acknowledgment of a problem) and G.3.b (successful completion of a treatment program) were considered, the board concluded that the applicant did not provide enough evidence to demonstrate a sustained resolution of the issues.

The denial was ultimately based on the applicant's history of multiple DUIs and the board's determination that he remained in denial about his alcoholism, despite being a self-admitted alcoholic. The decision underscored the paramount importance of national security in all clearance determinations.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Incidents
G.2.craisedAlcoholism

Mitigating

G.3.arejectedSobrietySimply quitting alcohol for a year or so is not enough to show he will not relapse again.
G.3.brejectedRehabilitation EffortsThe applicant's participation in court-ordered programs did not demonstrate a commitment to sobriety.

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 10, 2016
Answer filed—
Hearing heldJan 17, 2017
Decision dateApr 13, 2017

Cite For

Denial of Security Clearance Due to Alcohol-related Incidents Under Guideline G
Insufficient Evidence of Rehabilitation in Alcohol-related Cases
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 (Alcohol Consumption). The applicant argued that the Judge erred in concluding he is an alcoholic and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and that the applicant did not demonstrate any harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene D. Lokey Anderson — denied the clearance

Decided ona hearing

Guidelines belowGuideline G

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge erred in concluding he is an alcoholic and remains in denial.
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.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant asserted that the Judge erred in her mitigation and whole-person analysis.
Erroneous finding of fact — raised by the applicantRejected
Applicant claimed the Judge erred in concluding he abused alcohol for over 35 years.

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 conclusions were based on substantial evidence and that the applicant did not rebut the presumption that the Judge considered all evidence. The Board also determined that the applicant failed to show that the Judge mis-weighed the evidence or that the decision was arbitrary, capricious, or contrary to law.

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 F. Duffy

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’s conclusions are based upon substantial evidence. The reciprocity provisions of the NISPOM are not applicable in this case. Applicant did not rebut the presumption that the Judge considered all of the evidence. Applicant has not shown that the Judge mis-weighed the evidence. Adverse decision affirmed. CASE NO: 15-07811.a1 DATE: 04/13/2017 DATE: April 13, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-07811

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 10, 2016, 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 January 17, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Darlene D. Lokey Anderson denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge erred in concluding he is an alcoholic and 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 is a 54-year-old employee of a defense contractor. He is divorced with two children. He started consuming alcohol at age 21. After he and his ex-wife separated in 2009, he went to a bar once or twice during the week and on weekends to avoid loneliness. He was never a daily drinker nor drank at home alone, but described himself as more of a “binge drinker.” Decision at 2. In 2010, he was arrested and charged with driving under the influence of alcohol (DUI). He blew a .12% on a breathalyzer test. He pled nolo contendere to the DUI charge and was sentenced to a fine and required to attend a six-month alcohol awareness class, a Mothers Against Drunk Driving (MADD) class, and Alcohol Anonymous (AA) meetings. After his arrest, he stopped consuming alcohol for about six to eight months, but then returned to socializing with friends at a bar. In 2015, Applicant went to the bar following a promotion. Friends bought him drinks to celebrate. He consumed about six or seven beers before driving home. He was pulled over by the police, arrested, and charged with DUI. He spend four days in jail. He pled nolo contendere to the DUI charge and was sentenced to five days in jail, four years of probation, community service, an 18-month second offender alcohol and drug education and counseling program, and a substantial fine. He remains on probation until 2018. Applicant does not believe he is an alcoholic. However, a letter from the alcohol awareness course he is attending characterizes him as a “self-admitted alcoholic relating traditional symptoms of alcoholism, including loss of control over intake once drinking commenced.” Decision at 3, citing Applicant’s Exhibit (AE) B. He attended only the counseling and AA meetings that the court ordered. He does not have an AA sponsor and has not worked on the 12-step program. He no longer goes to bars to socialize. Applicant has received accolades as a stellar performer. In 2014 and 2015, he received the highest work performance rating. The Judge’s Analysis Applicant is an alcoholic who is a binge drinker. He remains in denial and does not believe he is an alcoholic. None of the mitigating conditions are applicable. He claims that he has not consumed any alcohol since his last DUI arrest. He is commended for this effort and encouraged to continued with his sobriety; however, given that he has abused alcohol for years, simply quitting for a year or so is not enough to show he will not relapse again.

DISCUSSION

Applicant contends that the Judge erred in concluding that he is an alcoholic and remains in denial, but acknowledges that he has a “problem/issue with alcohol consumption as an occasional alcohol abuser (binge).” Appeal Brief at 1. In deciding whether the Judge's analysis or conclusions are erroneous, we will review the decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion. See ISCR Case No. 14-02563 at 3-4 (App. Bd. Aug. 28, 2015). At the hearing, Applicant offered into evidence a letter from the director of an alcohol counseling program who is a certified addictions treatment counselor (CATC). The letter stated, as quoted by the Judge, that Applicant enrolled in the program “as a self-admitted alcoholic; relating traditional symptoms of alcoholism, including loss of control over intake once drinking commenced.” Decision at 3. The letter also stated that Applicant came to accept his alcoholism through participation in the program. AE B. At the hearing, Applicant testified that he did not believe he was an alcoholic but was a binge drinker. He further stated he does not need alcohol, can do without it, and never has been diagnosed as an alcoholic, but acknowledged his binge drinking was an alcoholic symptom. Tr. at 50-56. In the Appeal Brief, Applicant contends that he is smart and has properly diagnosed his own alcohol issues. From our review of the record, the Board finds that the Judge’s conclusions about the nature of Applicant’s alcohol problem are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. See, e.g., ISCR Case No. 12-03420 at 3 (App. Bd. Jul. 25, 2014). Applicant also contends the Judge erred in other findings and conclusions. For example, he asserts that she erred in concluding he abused alcohol for over 35 years. He testified that he began consuming alcohol at age 21 (Tr. at 32) and points out that, according to the Judge, he would have begun consuming alcohol at age 19. Even though the Judge erred in her calculation about the span of his alcohol consumption and may have erred in other regards, we conclude any of those errors were harmless because they likely had no impact on the ultimate decision. See, e.g., ISCR Case No. 14-03601 at 3 (App. Bd. Jul. 1, 2015). At the hearing and in his Appeal Brief, Applicant stated that he met with a Government representative in late 2015, was informed that he could retain his security clearance, and signed a warning letter. Tr. at 18. The record of this proceeding does not contain the warning letter. Even if we consider his statements in a light most favorable to him, we do not conclude that, when DoD issued the SOR in 2016, there was a current investigation or adjudication of Applicant in place by any other agency. Therefore, the reciprocity provisions in either Executive Order 13467 or DoD 5520.22-M, National Industrial Security Program, are not applicable in this case. See, e.g., ISCR Case No. 04-12742 at 3 (App. Bd. Feb. 25, 2011). Applicant argues the Judge erred in her mitigation and whole-person analysis. In doing so, he cites to such matters as his career achievements, his successful completion of an 18-month substance abuse program, his willingness to take alcohol tests, and his 21 months of sobriety. These arguments are neither enough to rebut the presumption that the Judge considered all of the evidence in the record nor are they sufficient 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. 15-04856 at 2-3 (App. Bd. Mar. 9, 2017). Additionally, we find no basis for concluding the Judge erred in her whole-person analysis. Applicant has not identified any harmful error likely to change the outcome of the case. The Judge examined the relevant evidence 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.” The decision is sustainable on this record.

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 F. Duffy James F. Duffy Administrative Judge Member, Appeal Board