KEYWORD: Guideline H; Guideline G; Guideline E
DIGEST: Error in Judge’s findings was harmless.  Applicant failed to demonstrate that the Judge
mis-weighed the record evidence.  Adverse decision affirmed.
CASE NO: 09-04905.a1
DATE: 01/19/2011
DATE: January 19, 2011
In Re:
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Applicant for Public Trust Position
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ADP Case No. 09-04905
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
trustworthiness designation.  On May 24, 2010, DOHA issued a statement of reasons (SOR)
advising Applicant of the basis for that decision–trustworthiness concerns raised under Guideline
H (Drug Involvement), 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 October 29, 2010, after the hearing, Administrative Judge Henry Lazzaro
denied Applicant’s request for a trustworthiness designation.  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; whether the Judge mis-weighed the evidence;
and whether the Judge’s adverse trustworthiness determination was arbitrary, capricious, or contrary
to law.  Consistent with the following discussion, we affirm the decision of the Judge.
Applicant is a registered nurse/quality assurance specialist for a Defense contractor.  He
served in the Navy from August 1991 until February 1992.  He received a General Discharge.  He
married in June 2006 and was divorced in March 2010.  He has a daughter and stepson from the
marriage.  Applicant’s former wife has custody of the daughter, and Applicant has routine visitation
rights.  
He experimented with marijuana as a teenager.  Much later, in 2004, he began taking
prescription opiates following surgery.  He consumed a total of about 240 Vicodin over the course
of two months.  In 2006 he suffered a back injury, for which he was prescripted Lortab and
Oxycodone.  In 2007 Applicant experienced stress.  He began consuming dilaudid, a controlled
substance.  He obtained it from waste pumps that had been used for patients at the hospital where
he was working.  Although the vials were to be destroyed, he removed them from the storage
refrigerator and consumed them, either at work or at home.  His usage of this drug escalated to the
point that he was consuming it a couple of times a day at work.  He also experimented with
morphine.  In October 2008 Applicant’s employer directed him to take a drug test, due to observed
personality changes.  The test came back positive for prescription drugs–fentanyl, hydrocordone,
and hydromorphone (dilaudid).  These drugs were not prescribed for Applicant.  
Applicant enrolled in a residential substance abuse program.  He was discharged after 28
days, with a diagnosis of opiate dependence.  He was recommended for after care treatment in order
to remain drug free.  He attended a relapse prevention group meeting in November 2008.  A clinical
social worker diagnosed Applicant as being both alcohol dependent and opiate dependent.  He met
regularly with this group until August 2009, when he was forced to discontinue participation due
to problems with his insurance coverage.  His group sessions included discussions about problems
within his marriage.  His wife attended sessions with Applicant’s counselor.  Applicant attended
Alcoholics Anonymous (AA) regularly until April 2010.  He enjoys a good reputation for
trustworthiness, for the quality of his work performance, and for his sincerity.
In the Analysis portion of the decision, the Judge noted positive aspects of Applicant’s
record, to include his successful completion of the substance abuse program.  However, the Judge
concluded that Applicant’s belief that he has no problem with alcohol, despite his statements to the
contrary during counseling sessions, is inconsistent with a claim of rehabilitation.  The Judge also
noted that, at the close of the record, Applicant was again experiencing stress.  Accordingly, he
concluded that Applicant had not met his burden of persuasion as to mitigation of the trustworthiness
concerns in his case.
Applicant contends that the Judge erred in some of his findings.  For example, the Judge
found that Applicant’s wife has custody of their daughter, whereas Applicant testified that the two
have joint custody.  Tr. at 82.  However, in light of the totality of the record evidence, this error is
harmless.  Otherwise, the Judge’s material findings 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 trustworthiness concern are sustainable.  See
Directive ¶ E3.1.32.1 for the definition of “substantial evidence.”  See also ADP Case No. 08-00826
at 2 (App. Bd. Mar. 19, 2010).
Applicant argues that the Judge did not properly weigh record evidence concerning his
dependence on alcohol.  In fact, the Judge noted Applicant’s testimony to the effect that he does not
believe that he has an alcohol dependence problem, but he compared that with other evidence,
particularly case notes from his counseling sessions, in which Applicant stated the opposite.
Applicant’s argument on appeal is not sufficient to demonstrate that the Judge mis-weighed the
evidence.   See ADP Case No. 06-14978 at 2 (App. Bd. Jan. 18, 2008).  
The record supports a conclusion 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 made favorable formal findings for Applicant under SOR paragraphs 1(a) and
3, but, in light of the entirety of the record evidence, the Judge’s decision not to grant Applicant a
trustworthiness designation is sustainable. 
   
Order
The Judge’s adverse trustworthiness determination is AFFIRMED.  
Signed: Michael D. Hipple          
Michael D. Hipple
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