KEYWORD: Guideline G; Guideline E; Guideline J
DIGEST: Applicant failed to rebut the presumption that the Judge considered all of the record
evidence.  The record provides no reason to conclude that Applicant’s pro se status denied him
due process.  Adverse decision affirmed.  
CASENO: 09-01735.a1
DATE: 08/31/2010
DATE: August 31, 2010
In Re:
----------------
Applicant for Security Clearance
)
)
)
)
)
)
)
)
ISCR Case No. 09-01735
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro se
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On July 21, 2009, DOHA 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 J (Criminal Conduct) of Department of Defense
Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.  On June
18, 2010, after the hearing, Administrative Judge Martin H. Mogul 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 failed to consider record
evidence favorable to Applicant; whether Applicant was denied due process; and whether the
Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law.  Consistent
with the following discussion, we affirm the decision of the Judge.
The Judge made the following pertinent findings of fact: Applicant is employed by a Defense
contractor and is seeking a security clearance in connection with his job.  In March 2006, Applicant
was arrested and charged with burglary, assault with a deadly weapon, and public discharge of a
firearm.  He had been drinking on the day of the offense.  He threatened his next-door neighbor with
a gun and fired it twice into the ground in front of her porch.  Pursuant to a plea agreement, he was
convicted of the assault charge and sentenced to three years of confinement (suspended).  He was
ordered to undergo three years of probation, during which time he was to abstain from possessing
or consuming alcohol.  He also was required to attend a residential rehabilitation clinic and to attend
Alcoholics Anonymous (AA).  
The record includes evidence of previous alcohol related offenses.  In March 1995, Applicant
was arrested and charged with DUI.  He was fined $1,000.  In March 1986 Applicant was arrested
for DUI, although his breathalyzer results were below the legal limit.  Applicant admitted, however,
that he had consumed beer before driving.
Applicant abstained from alcohol from 2006 to 2008.  However, he resumed drinking in
2008, during which time he was still on probation.  He enjoys an excellent reputation for the quality
of his job performance.  On appeal, Applicant denies drinking any alcohol in 2008.  The Judge’s
findings on this point conform to the record evidence.  Tr. at 41-42; Decision at 3.
Applicant contends that the Judge did not consider favorable record evidence concerning the
high quality of his job performance.  However, a Judge is presumed to have considered all of the
evidence in the record.  See ISCR Case No. 09-05830 at 2 (App. Bd. Jun. 25, 2010).  As stated
above, the Judge made explicit findings concerning Applicant’s job performance.  However, his
explanation as to why he concluded that Applicant had failed to meet his burden of persuasion as to
mitigation reflects a reasonable interpretation of the record, viewed as a whole.  Applicant has not
rebutted the presumption that the Judge considered all of the record evidence.  Neither has he
demonstrated that the Judge weighed the evidence in an arbitrary or capricious manner.  Id.  
Applicant states that, though he originally thought that he did not need counsel to represent
him at the hearing, upon reflection he believes that his failure to have counsel led to the adverse
decision in his case.  We construe this as an argument that Applicant was denied due process.  The
record demonstrates that Applicant received pre-hearing guidance advising him of his right to
employ counsel.  Additionally, at the beginning of the hearing, the Judge advised Applicant of this
right and conducted an inquiry to determine whether Applicant was capable of representing himself,
concluding in the affirmative.  Tr. at 4-5.  There is no indication that Applicant was denied the due
process afforded by the Directive.  See ISCR Case No. 08-03110 at 2 (App. Bd. Jan. 27, 2009).  
After reviewing the record, the Board concludes that the Judge examined the relevant data
and articulated a satisfactory explanation for the decision, “including a ‘rational connection between
the facts found and the choice 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 Judge’s adverse 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). 
Order
The Judge’s adverse security clearance decision is AFFIRMED.  
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