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ISCR Case 16-01684.a1 — CASE

ISCR Case 16-01684.a1denied

Case Headnote

ISCR Case No. 16-01684.a1

Aug 9, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

This applicant, represented by counsel, was denied a security clearance primarily under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The denial stemmed from multiple DUI offenses and a diagnosis of alcohol abuse. Although an initial allegation under Guideline E (Personal Conduct) was withdrawn, the core concerns remained.

The judge determined that the applicant had not demonstrated sufficient rehabilitation, noting a failure to learn from past offenses despite attending alcohol safety courses. Furthermore, the time elapsed since the most recent offense was deemed insufficient to mitigate the security risk.

The appeal board affirmed the denial, concluding that the judge's decision was neither arbitrary nor contrary to law. The board upheld the findings related to the applicant's history of alcohol-related incidents and the lack of demonstrated reform.

Conditions Referenced

Disqualifying

AG ¶ 20raisedCriminal Conduct
AG ¶ 21raisedAlcohol 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 issuedJun 13, 2016
Answer filed—
Hearing heldMay 9, 2017
Decision dateAug 9, 2017

Cite For

Affirmation of Denial Based on Multiple DUI Offenses Under Guideline G
Consideration of Alcohol Abuse Diagnosis Under Guideline J
Standard for Security Clearance 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 was filed by the applicant after the Administrative Judge denied his request for a security clearance based on concerns under Guidelines G, J, and E. 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 proceedings.

Appealed bythe applicant

Applicant representationAttorney

Judge belowCarol G. Ricciardello — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline JGuideline E

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 considered all evidence and did not weigh it in an arbitrary or capricious manner. The decision was affirmed as sustainable on the record.

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
James E. Moody
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; Guideline J; Guideline E DIGEST: Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record, nor has he shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASENO: 16-01684.a1 DATE: 08/09/2017 DATE: August 9, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-01684

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 June 13, 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 J (Criminal Conduct), and Guideline E (Personal Conduct)1 of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). On May 9, 2017, after conducting a hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Carol G. Ricciardello denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30.

FOOTNOTES

1 The Judge withdrew the Guideline E allegation upon motion by Department Counsel. Decision at 2. 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 and Analysis The Judge summarized her essential findings in the Analysis portion of her decision. She found that Applicant had been arrested for DUI in 2008. Although the charge was dismissed, Applicant went to an alcohol and drug safety course and his license was suspended. He was charged with DUI again in 2010 and convicted the following year. He was ordered to attend an alcohol safety course and to pay fines. In addition, his license was suspended. Applicant was diagnosed with alcohol abuse. In 2015, Applicant’s car struck another one, and he received his third DUI charge, as a consequence of which he was sentenced to five days in jail, a fine, and attendance at an alcohol safety course. The Judge stated that Applicant was 27 at the time of his first arrest, so that his offenses could not plausibly be attributed to youthful indiscretion. She noted that it had been two years since his last incident. However, she also noted that by the date of her decision it was only a few months since Applicant was released from probation. She stated that each time he was arrested or convicted he had an opportunity to learn but failed to do so. She stated that, given the number of his offenses, his having attended alcohol safety courses several times, and his continued consumption of alcohol, the two years since his last offense are not enough to show that Applicant’s security-significant conduct is behind him. Discussion Applicant cites to matters that, he believes, the Judge did not consider, such as his having held a clearance for many years without incident or concern, his evidence that he consumes alcohol only rarely, the family problems that he was undergoing in 2015, etc. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record, nor has he shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 13-00502 at 3 (App. Bd. Mar. 7, 2017). We give due consideration to the Hearing Office cases that Applicant cites in his Appeal Brief. They are not sufficient to show undermine the Judge’s adverse findings. In any event, Hearing Office cases are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 15-01416 at 3 (App. Bd. Feb. 15, 2017). The Judge examined the relevant evidence 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, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board