KEYWORD: Guideline G; Guideline J
DIGEST: Applicant failed to rebut the presumption that the Judge was impartial.  Judge’s
finding concerning the timing of Applicant’s diagnosis of alcohol dependence was harmful error. 
Adverse decision remanded.  
CASE NO: 10-00827
DATE: 03/03/2011
DATE: March 3, 2011
In Re:
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Applicant for Security Clearance
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ISCR Case No. 10-00827
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Darin M. Groteboer, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On June 9, 2010, 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 J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a hearing.  On December 8, 2010, after the hearing,
Administrative Judge Darlene D. Lokey Anderson denied Applicant’s request for a security
clearance.  Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raised the following issues on appeal: (a) whether the Judge was biased; (b)
whether certain findings of fact made by the Judge are supported by the record evidence; and (c)
whether the Judge’s application of mitigating factors was arbitrary, capricious, or contrary to law.
For the reasons discussed below, the Board remands the Judge’s unfavorable decision.
The Judge made the following pertinent findings of fact: Applicant is 27 years old and
unmarried with one child.  Applicant first tried alcohol as a junior high school student.  He did not
like it and did not try alcohol again until he was 21.  From 2004 to 2009 he consumed alcohol
several times a week, and at times to excess and to the point of intoxication.  His drinking was
restricted to social situations.  He does not believe that he has ever had a drinking problem, that he
is alcohol dependent, or that he is an alcoholic.  At the most he would drink a maximum of eight
beers, and sometimes he might have a shot of hard liquor.  On most occasions, where he would drink
with friends and consume five to nine beers, he would not drive a vehicle.
In 2007, the Applicant was concerned about his drinking, as he was consuming more alcohol
than he wanted to.  At this point he was consuming alcohol two or three times a week.  He went on
line and found an alcohol treatment program he could attend.  From August 2007 to September
2007, he received inpatient treatment for his alcohol problem and was diagnosed with Alcohol
Dependence.  Applicant admitted that he was consuming alcohol more than twice a week during this
time, as he was depressed about his job program shutting down, but he does not believe he was
drinking to excess.  He stated that he entered the treatment program of his own free will and not with
the recommendation of his employer.  He felt that the alcohol program was a scam, and so he left
the program early, after 28 days instead of the full 30 day program.  He did not want to take the
medication that the psychiatrist was prescribing him, and he was told that if he did not follow the
program, he was not wanted there.  Following the 2007 alcohol program, Applicant did not consume
any alcohol for about five or six months.  He then resumed his drinking at the level of once or twice
on the weekends.  
In May 2009, Applicant was arrested for Driving Under the Influence.  He explained that he
was watching sports with friends and consumed eight or nine beers.  He did not feel drunk and
decided to drive home.  Applicant failed a breathalizer test and blew a .15%.  His sentence included
completion of a six month alcohol program.  His driver’s license was also suspended for six months.
Since the arrest, he has not consumed alcohol.  Applicant enrolled in and successfully completed
an alcohol beverage control traffic program in 2010.  He also attended AA meetings required as part
of the program.  He has been abstaining from alcohol for more than a year.  Applicant wants to be
a good role model for his son.  He realizes that he has made some bad decisions in the past and he
believes he has learned from them.  He has no plans to ever consume alcohol again.  He believes his
consumption of alcohol is under control and that he can manage it by himself.  Applicant is planning
to go to AA meetings to give himself the extra security to abstain from drinking and to prevent
relapse.  Letters of recommendation describe him as trustworthy, responsible, mature, loyal and a
good husband and father.  Applicant is said to always take the proper steps to safeguard any and all
information while supporting the classified program where he was assigned.
The Judge reached the following conclusions: The Government met its initial burden of
proving that Applicant has engaged in alcohol abuse and criminal conduct.  The totality of this
evidence indicated poor judgment, unreliability and untrustworthiness on the part of the Applicant.
Applicant did not introduce persuasive evidence in rebuttal, explanation or mitigation that was
sufficient to overcome the Government’s case.  The evidence showed that Applicant was an
alcoholic in denial.  Despite his treatment program in 2007 for alcohol dependence, he continued
to drink at times excessively, until he was arrested for DUI in May 2009, just last year.  Since then
he has completely abstained from drinking and plans to maintain sobriety.  He is commended for
this.  However, with only a year of sobriety, there is no guarantee that he will be able to maintain
any long term sobriety.  Based upon his past record of relapse following treatment, there is a strong
chance at this point that he may return to his old habits.  Applicant has only recently acknowledged
his alcohol problem and expressed an intent to participate in an alcohol after care program.  The
arrest for DUI occurred just last year and he will remain on probation for the offense until May
2012.  The conduct was criminal and recent and has not been mitigated.  The Applicant is a 27 year
old alcoholic who had just started to come to grips with the seriousness of his drinking problem.
Under the particular facts of this case, the totality of the conduct set forth under all of the guidelines
viewed as a whole, support a whole-person assessment of poor judgment, untrustworthiness,
unreliability, a lack of candor, an unwillingness to comply with rules and regulations, and/or other
characteristics indicating that the person may not properly safeguard classified information.  
Applicant argues that the Judge did not remain objective and failed to take an unbiased
viewpoint during Applicant’s testimony.  At one point the Judge stated, “I don’t believe you” to
Applicant when he was describing the amount of alcohol he was consuming just prior to entering
the alcohol treatment program in 2007.  Applicant cites this as indicative of bias as well as the
Judge’s failure to present any logical reason for not believing Applicant’s testimony.  
There is a rebuttable presumption that a Judge is impartial and unbiased, and a party seeking
to overcome that presumption has a heavy burden of persuasion.  See, e.g., ISCR Case No. 07-02253
at 3 (App. Bd. Mar. 28, 2008).  In evaluating a bias claim, the Board will not review individual cited
passages or instances in isolation.  Rather, the Board will review the entirety of the record and the
Judge’s decision to determine whether the Judge has maintained her role as impartial fact finder.
The standard is not whether a party personally believes a Judge was biased or prejudiced, but rather
whether the record of the proceedings below contains any indication that the Judge acted in a
manner that would lead a reasonable, disinterested person to question the fairness and impartiality
of the Judge.  See ISCR Case No. 03-07245 at 3-4 (App. Bd. May 20, 2005).  Although the Judge’s
comment to Applicant during his testimony is arguably not a model of judicial decorum, the
comment is isolated, and after a review of the whole record and the Judge’s decision, the Board
concludes that Applicant has not met his burden of overcoming the presumption of impartiality.
Applicant contends that the Judge made a finding that Applicant was diagnosed as alcohol
dependent in 2007, and that this was not true.  The Board construes this argument as stating that the
Judge’s finding has no basis in the evidentiary record.  Applicant’s argument has merit.  SOR
allegation 1.c. included the claim that Applicant was diagnosed as alcohol dependent in 2007.
Applicant did not admit this allegation.  Department Counsel therefore had the burden of producing
substantial evidence to establish this controverted fact.  There is no evidence in the record to support
a finding that Applicant was diagnosed as alcohol dependent during his inpatient treatment between
August 2007 and September 2007.  Indeed, there is no documentary evidence whatsoever pertaining
to Applicant’s inpatient treatment in 2007 and the record contains no evidence of any diagnosis at
that time.  Instead, there is evidence of a diagnosis of alcohol dependence in 2010.  Government
1“[D]iagnosis by a duly qualified medical professional (e.g., physician, clinical psychologist, or psychiatrist)
of alcohol abuse or alcohol dependence[.]”
2“[R]elapse after diagnosis of alcohol abuse or dependence and completion of an alcohol rehabilitation
program[.]”
Exhibit 4 is an addiction severity index, dated April 23, 2010, that Applicant was required complete
as a result of his 2009 DUI.  It appears to be little more than the documented results of an interview
with Applicant, but it does cover his entire history with alcohol in some detail and it does contain
a diagnosis of alcohol dependence.
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The Board must now consider the magnitude of the Judge’s erroneous finding of fact.  The
fact that Applicant was diagnosed as alcohol dependent three years after the Judge found that he was
does not render the error harmless.  The timing of the diagnosis is an important element of the case.
The Judge concluded that Applicant was an alcoholic in denial and despite his treatment program
in 2007 for alcohol dependence, he continued to drink, sometimes excessively, until he was arrested
for DUI in 2009.  The Judge concluded that, among others, Guideline G Disqualifying Conditions
22(d)1 and 22(f)2 applied.  Absent record evidence of a diagnosis of alcohol abuse or alcohol
dependence by a duly qualified medical professional in 2007, there is no basis for applying
Disqualifying Condition 22(f).  Also, the Judge’s application of Disqualifying Condition 22(d)
would need to take into consideration her own finding that Applicant stopped drinking in 2009, prior
to the diagnosis.  While other disqualifying conditions apply, the strength of the case against
Applicant and the relative strength of any applicable mitigating conditions is affected by the non-
applicability of the two disqualifying conditions previously mentioned.  The Board cannot conclude
that the erroneous finding of a diagnosis of alcohol dependence in 2007 did not affect the Judge’s
application of the Guideline G and Guideline J mitigating conditions.  The potency of the Judge’s
conclusions that Applicant exercised poor judgment and that he has only recently acknowledged his
alcohol problem would necessarily be affected by the length of time Applicant has lived and
consumed alcohol with a diagnosis of alcohol dependence.  The absence of such a diagnosis casts
his post-2007 drinking pattern and subsequent DUI in a different light.  
For these reasons, the Board cannot reasonably conclude that, had the Judge not made the
error, she would nevertheless have arrived at the same decision.  See, e.g., ISCR Case No. 03-23829
at 3 (App. Bd. Apr. 27, 2007).  Inasmuch as the identified error likely affected the Judge’s
application of the Guideline G and Guideline J mitigating conditions, the Board need not address
Applicant’s arguments regarding same at this time.  
Order 
In accordance with the Board’s preceding discussion, the Judge’s decision denying Applicant
a security clearance is REMANDED.  The Judge shall issue a new decision consistent with the
analysis contained herein.
Signed: Michael Y. Ra’anan        
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jeffrey D. Billett              
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed; William S. Fields           
William S. Fields
Administrative Judge
Member, Appeal Board