KEYWORD: Guideline G; Guideline E
DIGEST: Applicant was previously denied a security clearance.  The decision to permit him to
reapply did not equate to a favorable adjudication on those allegations addressed in his prior
case.  Furthermore, the Government is not estopped from reconsidering the security significance
of past conduct.  Adverse decision affirmed.  
CASE NO: 06-10859.a1
DATE: 09/02/2010
DATE: September 2, 2010
In Re:
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Applicant for Security Clearance
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ISCR Case No. 06-10859
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Jeff A. Nagel, Esq., Department Counsel
FOR APPLICANT
James F. Campbell, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On August 11, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of
the basis for that decision–security concerns raised under Guideline G (Alcohol Consumption) and
Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a hearing.  On May 26, 2010, after the hearing,
Administrative Judge David M. White 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 certain of the Judge’s findings of
fact were supported by substantial record evidence and whether the Judge erred in his application
of the pertinent mitigating conditions.  Consistent with the following discussion, we affirm the
Judge’s decision.
The Judge made the following pertinent findings of fact: Applicant is a 48-year-old employee
of a Defense contractor.  He held a security clearance from 1985 to 2002.  Applicant had a previous
security clearance case adjudicated by a DOHA Judge.  In the prior adjudication, the Judge found
against Applicant under Guideline E and in favor of Applicant under Guideline G.  Applicant
appealed that decision.  The Appeal Board affirmed the adverse decision.  Three of the current
allegations under Guideline G and eight of the current allegations under Guideline E were also at
issue in the prior adjudication.
Th Judge found the Findings of Fact from the first Judge’s decision fully supported by the
evidence and adopted them and incorporated them by reference.  
In October 1998, Applicant was arrested for Driving Under the Influence (DUI).  Applicant
was very intoxicated that night .  Applicant’s friend drove Applicant’s car.  There was an accident
and the friend left to find a tow truck, leaving Applicant at the site.  Applicant, with a blood alcohol
content (BAC) of .24%, was formally charged, but the DUI was later dismissed without trial when
the friend told the prosecutor he had been driving.
Between August 1998 and October 2000, Applicant was cited seven times for traffic
violations.  He admits committing six of the violations. One charge (Driving While License
Suspended) was an error and was so determined by a court.
In July 2001, Applicant was stopped for speeding and his BAC registered at .191%.  He was
arrested and charged with DUI.  In February 2002, he successfully completed an alcohol treatment
program for a diagnosed condition of Alcohol Abuse.  He pleaded guilty to a lesser charge of
Negligent Driving First Degree.
In December 2005, Applicant was cited for speeding.
In December 2006, Applicant was stopped twice in Canada for speeding.  On the second
stop, he was also cited for an open alcohol container, although he claimed not to know it was there.
In late December 2006 Applicant drank several beers with a meal before crossing the border
into Canada.  He was arrested at 6:30 pm.  He told the officer he had had one beer at 4:00 pm.  At
10:11 his BAC was .110% and at 10:49 .120%.  Due to technical flaws in the timing, charges were
not filed.
In February 2008, Applicant was in a traffic accident with a police car.  He provided two
breath samples which both registered .068%.  A blood sample taken later had a reading .05% which
is presumed under state law to mean that he was not driving under the influence.  No charges were
filed, which meant under state law that he was detained not arrested.  The police report showed the
officer was at fault.
Applicant admitted consuming alcohol at times to excess and to the point of intoxication or
impairment from 1997 to 2008.  Applicant’s reports as to his last drink are somewhat inconsistent.
In the context of 2004 DOHA proceedings, Applicant obtained a psychologist’s report which
stated that his substance use/abuse was within normal limits and that he had ceased drinking alcohol
when away from home.  It said he was at no more than a normal risk for alcohol abuse and very little
risk for alcohol dependence.
Applicant omitted his 2004 consultation with the psychologist from his 2007 security
clearance application.  Given the context of the event, the wording of the question and Applicant’s
credible explanation this was not a deliberate falsification.
There is no record evidence to support allegation 2.m.
Applicant contends that the Judge erred in some of his findings.  After reviewing the record,
the Board concludes that the Judge’s material findings of security concern are based on substantial
evidence, or constitute reasonable characterizations or inferences that could be drawn from the
record.  Applicant has not identified any harmful error likely to change the outcome of the case.
Considering the record evidence as a whole, the Judge’s material findings of security concern are
sustainable.  See, e.g., ISCR Case No. 08-11564 at 2 (App. Bd. Jun. 21, 2010).
Applicant presumes that the decision to permit his reapplication for a security clearance to
go forward equated to an adjudication in Applicant’s favor on the substance of the issues alleged in
the SOR.  Such is not the case.  The Administrative Judge was not barred from ruling against
Applicant on issues raised by the SOR merely because of the reapplication decision.  See Directive
¶ E3.1.38 - ¶ E3.1.41.
Applicant challenges the Judge’s application of the mitigating conditions on the grounds that
the government had failed to meet its burden. Applicant’s premise is mistaken; the government’s
burden is only to present witnesses and other evidence to establish facts alleged in the SOR that have
been controverted.  Beyond that the burden of persuasion lay with the Applicant.  Directive, ¶
E3.1.14 and ¶ E3.1.15.  Where the Department Counsel failed to present evidence, as with allegation
2.m., the Judge found in Applicant’s favor.  Once substantial evidence had been presented on the
controverted allegations, it was up to Applicant to mitigate, explain, rebut, or refute.  Department
Counsel never has the burden of refuting a mitigating condition.
Applicant contends that the Judge did not consider record evidence, such as Applicant’s
testimony.  However, a Judge is presumed to have considered all of the evidence in the case record.
See, e.g.,  ISCR Case No. 09-05830 at 2 (App. Bd. Jun. 25, 2010).  In this case, the Judge discussed
Applicant’s recent abstinence, the psychologist’s report and the passage of time since Applicant’s
omissions from his security clearance applications.  However, he also explained why he concluded
that Applicant’s evidence was not sufficient to mitigate the Government’s security concerns.
Applicant’s brief does not rebut the presumption that the Judge considered the entire record.  Nor
does it demonstrate that the Judge weighed the evidence in the record in an arbitrary or capricious
manner.  See, e.g., ISCR Case No. 06-21819 at 2 (App. Bd. Aug. 13, 2009).  To the extent that
Applicant is arguing for an alternative interpretation of the record evidence, such argument is not
sufficient to demonstrate error by the Judge.  See, e.g., ISCR Case No. 08-08944 at 2 (App. Bd. Nov.
3, 2009).
Applicant cites his favorable adjudication in the past.  It is well settled that the government
is not estopped from reconsidering the security significance of past conduct. See ISCR Case. No.
07-00260 at 2-3 (App. Bd. Jan. 24, 2008):
Prior security clearance adjudications and the granting of clearances for the
Applicant have no bearing on the legal sufficiency of the Judge’s adverse clearance
decision here.  See, e.g, ISCR Case No. 03-04927 at 5 (App. Bd. Mar. 4, 2005).  The
government is not estopped from making an adverse clearance decision when there
were prior favorable adjudications.  See, e.g., ISCR Case No. 01-24506 at 3 (App.
Bd. Feb. 11, 2003).  In that regard, the government has the right to reconsider the
security significance of past conduct or circumstances in light of more recent conduct
or circumstances having negative security significance.  See, e.g., DISCR Case No.
91-0775 at 3 (App. Bd. Aug. 25, 1992); ISCR Case No. 02-17609 at 3-4 (App. Bd.
May 19, 2004).
Applicant suggests that the Judge should have analyzed in a piecemeal fashion.  The Board
has previously made clear that such analysis is contrary to the objective of accomplishing a
reasonable interpretation of the full evidentiary record.  See, e.g., ISCR Case No.04-12648 at 3-4
(App. Bd. Oct. 20, 2006) citing, in part, Raffone v. Adams, 468 F. 2d 860 (2nd Cir. 1972) (taken
together, separate events may have a significance that is missing when each event is viewed in
isolation).
  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: Michael Y. Ra’anan       
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jean E. Smallin             
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: James E. Moody           
James E. Moody
Administrative Judge
Member, Appeal Board