KEYWORD: Guideline G
DIGEST: Applicant’s one month of abstinence and his stated intention to continue an alcohol
treatment program begun the same month as the hearing are not sufficient to constitute a pattern
of abstinence or responsible behavior..Favorable decision reversed.
CASENO: 06-17541.a1
DATE: 01/14/2008
DATE: January 14, 2008
In Re:
-----
Applicant for Security Clearance
)
)
)
)
)
)
)
)
ISCR Case No. 06-17541
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
John Bayard Glendon, Esq., Department Counsel
FOR APPLICANT
Damian L. Martinez, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On October 23, 2006, DOHA issued a statement of reasons (SOR) advising Applicant
Decision at 3.1
Id. 2
Id. at 7.3
2
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 July 30, 2007, after the hearing, Administrative Judge Kathryn Moen
Braeman granted Applicant’s request for a security clearance.  Department Counsel filed a timely
appeal pursuant to Directive ¶¶  E3.1.28 and E3.1.30. 
Department Counsel raised the following issues on appeal: whether the Judge’s decision was
arbitrary, capricious, or contrary to law because it was made without an adequate evidentiary basis
and without consideration of important contrary record evidence; and whether the Judge’s whole
person analysis is not sustainable in light of the record evidence.  Finding error, we reverse. 
Whether the Record Supports the Judge’s Factual Findings
A.  Facts
The Judge made the following findings: Applicant admitted that he consumed alcohol “at
times to excess and to the point of intoxication from 2000 to July 2005.”   He has had three alcohol-1
related arrests between 2002 and 2004.  In June 2002, he was charged with “aggravated driving while
intoxicated,” which was subsequently reduced to DWI.  He had been arrested for passing in a no-
passing zone and subsequently had a .16 reading in a breathalyser test.  He was fined and ordered
to attend a DWI class.  He reported this incident to his supervisor.  Although he referenced it in an
October 2002 statement, he did not list it on his security clearance application (SCA) in 2006.  
In early July 2002, Applicant was again arrested, this time for “resisting, evading, and
obstructing an officer.”   He was intoxicated and was arguing with his wife.  When she called the2
police, Applicant tried to hide from them.  He pled guilty to the charges, paid a fine of $51, and was
placed on unsupervised probation, during the course of which he was not to consume alcohol.
Applicant complied with this requirement.  
In April 2004, Applicant was arrested for aggravated DWI, no registration, expired plates,
and no insurance.  He refused a breathalyser test.  He pled guilty to DWI, and the court dropped the
other charges.  Applicant was fined $350, ordered to attend an alcohol awareness class and undergo
a one-year probation.  He attended classes at a counseling center.  In February 2007 Applicant
decided to stop drinking altogether.  He sought an assessment from a clinical specialist, who
concluded that Applicant has “a low probability of a substance dependence disorder.”   3
B.  Discussion
The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they
are supported by substantial evidence–“such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion in light of all the contrary evidence in the record.”  Directive
Directive ¶ E2.23(a).4
3
¶ E3.1.32.1.  “This is something less than the weight of the evidence, and the possibility of drawing
two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.”  Consolo v. Federal Maritime Comm’n, 383 U.S.
607, 620-21 (1966).  In evaluating the Judge’s findings, we are required to give deference to the
Judge’s credibility determinations.  Directive ¶ E3.1.32.1.  
Department Counsel has not expressly challenged the Judge’s findings.  His contention that
the Judge failed to consider significant contrary record evidence will be addressed below.
Whether the Record Supports the Judge’s Ultimate Conclusions
 A Judge is required to “examine the relevant data and articulate a satisfactory explanation
for” the decision, “including a ‘rational connection between the facts found and the choices made.’”
Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).  “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).  The Appeal
Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary,
capricious, or contrary to law.  Directive ¶¶ E3.1.32.3 and E3.1.33.3.  
Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong
presumption against the grant or maintenance of a security clearance.  See Dorfmont v. Brown, 913
F. 2d 1399, 1401 (9  Cir. 1990), cert. denied, 499 U.S. 905 (1991).  After the government presentsth
evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those
concerns.  See Directive ¶ E3.1.15.  “The application of disqualifying and mitigating conditions and
whole person factors does not turn simply on a finding that one or more of them apply to the
particular facts of a case.  Rather, their application requires the exercise of sound discretion in light
of the record evidence as a whole.”  See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20,
2006).
Department Counsel argues that the Judge did not consider “important contrary record
evidence” in evaluating Applicant’s case.  Department Counsel’s argument has merit.  The Judge
concluded that Applicant had sustained his burden of persuasion under Alcohol Consumption
Mitigating Condition (ACMC) 23(b), which reads as follows: “”[T]he individual acknowledges his
or her  . . . issues with alcohol, provides evidence of actions taken to overcome this problem, and has
established a pattern of abstinence . . . or responsible use . . .”   However, as Department Counsel4
points out, Applicant’s efforts to overcome his problem began only a few weeks prior to the hearing
in his case.  Furthermore, Department Counsel argues persuasively that, in light of Applicant’s
history of alcohol related arrests and continued alcohol abuse thereafter, his one month of abstinence
and his stated intention to continue an alcohol treatment program begun the same month as the
hearing are not sufficient to establish a pattern of abstinence or responsible use, as required by the
Directive.  Indeed, Applicant’s various statements are equivocal as to whether he even acknowledges
See Government Exhibit (GE) 4, Statement by Applicant, at 3: “I do not consider my past alcohol consumption5
as a problem drinker.” See also Applicant Exhibit (AE) A, Letter from Alcohol Counselor, to the effect that, in the
counselor’s opinion, Applicant does not have a problem with alcohol; GE 2, Report of Subject Interview at 2:
“[Applicant] stated he does not consider himself an alcoholic or a problem drinker.”  Compare these with Applicant’s
testimony at Tr. at 54: “. . . I want all of this alcohol abuse and situation behind me . . . that it won’t ever be a problem
again.”  
Directive ¶ E2.23(c).  6
Applicant attended a DWI school after his 2004 incident, but the record is silent as to the contents of this7
program.  Applicant did state during an 2006 interview that this program did not entail an alcohol evaluation and that
he had never received alcohol counseling of any sort.  GE 2 at 1.  
Decision at 7.  8
“Q: [In 2002] [y]ou wrote . . . Due to my DUI and my alcohol consumption causing marital problems, I have9
no intention of consuming alcohol in the future.  Did you say that and write that?  A: Yes.  Q: And you wrote that
intending for the Government to rely upon it in granting you security clearance?  A: Yes .  Q: In fact, you did drink after
that day, didn’t you? . . . A: Yes.  Q: In fact, you were arrested in April of ‘04 for DUI?  A: Yes.”  Tr. at 76-77.  
4
a problem with alcohol to begin with.   5
The Judge also concluded that Applicant had met his burden of persuasion under ACMC
23(c), which permits the mitigation of alcohol-related security concerns when “the individual is a
current employee who is participating in a counseling or treatment program, has no history of
previous treatment and relapse, and is making satisfactory progress.”   In this case, the only6
counseling at issue is that which Applicant began just prior to the hearing.   As it is, there is7
insufficient evidence to permit a conclusion that Applicant has made satisfactory progress in a
counseling regimen proposed to occur over a period of months after the close of the record.  This
paucity of record evidence as to satisfactory progress does not outweigh the contrary evidence of
Applicant’s history of security-significant alcohol related problems.  When evaluated in light of the
record as a whole, the Judge’s favorable application of these two mitigating conditions is not
sustainable.  
For similar reasons, the Board concludes that the Judge’s whole person analysis fails to take
into account significant contrary evidence.  She observed that Applicant “has now made a renewed
commitment to abstinence.  He demonstrated that he now has the motivation to maintain his
abstinence and act responsibly . . . He credibly, candidly, and sincerely stated that he abstained from
alcohol consumption since February 2007 and intended to continue his abstinence.”   Generally8
speaking, promises of future good behavior are entitled to less weight than “a track record of reform
and rehabilitation.”  ISCR Case 94-1109 at 4 (App. Bd. Jan. 31, 1996).  This is especially so in light
of the fact that Applicant previously promised to abstain from alcohol during the course of a security
clearance investigation but subsequently resumed drinking.9
The Judge also took into account the favorable prognosis for Applicant’s sobriety contained
in the letter from his counselor.  However, as Department Counsel has pointed out, the record is not
clear as to whether Applicant apprised the counselor of his entire history of alcohol difficulties.
Furthermore, the Board notes the following language in the letter: “In my professional opinion,
[Applicant] does not have a problem with alcohol . . . I believe that in the near future, [Applicant]
AE A at 1.  10
Tr. at 54.  11
5
will not have any more legal problems with alcohol.”   The first sentence is not entirely consistent10
with Applicant’s own testimony at the hearing in which he characterized his prior experience with
alcohol as “a problem.”   The second quoted sentence does not address the security concerns raised11
by alcohol consumption, which are directed toward impairment of an applicant’s judgment and
reliability rather than simply whether he can expect to encounter legal problems in the future.  In
light of the above, the Board finds persuasive Department Counsel’s argument that the Judge’s
decision “runs contrary to the record evidence.”  See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun.
2, 2006).  Accordingly, the Board further concludes that the record does not sustain a favorable
decision, whether through the application of mitigating factors or through a whole person analysis
and that the Judge’s decision is arbitrary, capricious, and contrary to law.  
Order
The Judge’s favorable security clearance decision is REVERSED.
Signed: Jean E. Smallin         
Jean E. Smallin
Administrative Judge
Member, 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