KEYWORD: Guideline E; Guideline G; Guideline J
DIGEST: The adverse decision rested upon Applicant’s multiple DUIs and a paucity of evidence
to show both the full extent of Applicant’s drinking habits and any steps Applicant may have
taken to ensure that he is rehabilitated from alcohol abuse. Adverse decision affirmed.
CASENO: 16-00781.a1
DATE: 03/14/2018
DATE: March 14, 2018
In Re:
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Applicant for Security Clearance
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ISCR Case No. 16-00781
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Daniel M. Smith, Esq.
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On
September 2, 2016, DoD 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 decision on the written record.  On
November 22, 2017, after considering the record, Defense Office of Hearings and Appeals (DOHA)
Administrative Judge Roger C. Wesley 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 Applicant was denied due process
and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law.  Consistent
with the following, we affirm.
The Judge’s Findings of Fact
Applicant served in the military for 22 years, retiring as a noncommissioned officer.  Since
2006, he has worked for his current employer.  In June 2011, Applicant was arrested and charged
with DUI.  He had been to a restaurant where he claimed that he had consumed two beers. After he
left the restaurant, Applicant was stopped by the police because he failed to use a turn signal.  The
officer administered a breathalyzer test, yielding a result of .14%, a result apparently at odds with
Applicant’s claim that he had consumed only two beers.  Applicant pled guilty to DUI.  He was
required to complete an alcohol education program, followed by a Mothers Against Drunk Driving
class.  He was also fined $2,100 and placed on five years probation.
In 2014, Applicant drank four beers while barbecuing at his home.  He then drove to pick
up his grandson at school.  While driving home with his grandson, he struck a stopped police officer
on a motorcycle.  Applicant admitted to the officer that he had been drinking, and his breathalyzer
result yielded .12%.  Applicant pled guilty to this second DUI offense and to a charge of child
endangerment, both felonies.  “Both felonies were dropped by the court.”  Decision at 4.  Applicant
was fined, ordered to complete an 18-month alcohol education program, and placed on five years
probation.
The Judge cited Applicant’s security clearance application where Applicant stated that he
had been sober for almost 13 months and committed himself to never “taking another drink” in his
life.  Id.  The Judge also referenced his clearance interview where Applicant stated that he had not
had a drink since the 2014 DUI and that he had no intention of resuming drinking in the future. 
“Applicant, however, is still on probation and declined to admit or deny consuming alcohol while
on probation.”  Id.    
The Judge noted favorable letters from Applicant’s supervisor and the attorney who
represented him in his DUI cases.  The supervisor stated that Applicant has been serious about
avoiding another alcohol-related incident.  He stated that Applicant has avoided alcohol
consumption for “more than two years.”  Id. at 5.  The attorney stated that Applicant is a responsible
person, but he provided no additional information.  The Judge found that Applicant’s favorable
character evidence, which included a letter from the director of his 18-month education program
were helpful, but not dispositive, concerning Applicant’s continued sobriety.  He noted that the
record contains no evaluations by a substance abuse counselor and found that, without more
evidence regarding Applicant’s substance abuse history and the steps Applicant is taking to avoid
alcohol abuse, his assurances about his sobriety “cannot be afforded full weight.”  Id. at 4.
The Judge’s Analysis  
The Judge stated that little is known about Applicant’s drinking history or whether he
consumed alcohol during his periods of probation.  Due to a paucity of evidence on these matters,
the Judge concluded that it is difficult to gauge Applicant’s case for rehabilitation.  The Judge noted
that, in his answer to the SOR, Applicant stated that he neither affirmed nor denied drinking during
his probation.  He also noted that there is no evidence of follow-on counseling.  The Judge cited to
evidence that Applicant remains on probation as of the close of the record and concluded that the
record as a whole did not support a favorable result.
Discussion
Applicant notes the Judge’s comments about a paucity of evidence concerning rehabilitation. 
He states that, if he had known that he could respond to the File of Relevant Material (FORM) he
could have submitted additional information.  The record shows, however, that Applicant was
provided with notice of his right to respond.  In an email from Department Counsel, dated December
28, 2016, Applicant was advised that he would receive a copy of the written record, after which he
would have “thirty (30) days to respond with any objections, clarifications, or additional documents
that you want considered[.]” The FORM itself included a memo by Department Counsel that
explained to Applicant that he could submit a “documentary response setting forth objections,
rebuttal, extenuation, mitigation, or explanation as appropriate.”  DOHA sent Applicant a copy of
the FORM along with a cover letter that provided similar guidance.  Applicant acknowledged receipt
of the FORM and cover letter on March 15, 2017.  Applicant received adequate guidance about his
right to respond to the FORM.  He was not denied the due process that the Directive provides.  See,
e.g., ISCR Case No. 15-06494 at 2-3 (App. Bd. Oct. 5, 2017).
Applicant challenges a comment by the Judge to the effect that his claim to have consumed
only two beers prior to the 2011 incident was at apparent odds with his .14% breathalyzer result. 
However, the Judge’s doubt about Applicant’s claim is not unreasonable.  In any event, his overall
adverse decision appears to have rested upon Applicant’s multiple DUIs and a paucity of evidence
to show both the full extent of Applicant’s drinking habits and any steps Applicant may have taken
to ensure that he is rehabilitated from alcohol abuse.  Therefore, even if the Judge’s comment was
in error, it did not likely affect the overall result of the case.  Assuming without deciding that the
comment was erroneous, it was harmless.  On the whole, Applicant’s appeal brief is a challenge to
the manner in which the Judge weighed the evidence.  Among other things, he cites to the court
never having ordered him to abstain from consuming alcohol while on probation from his first DUI,
his years of sobriety following his second DUI, his compliance with court-ordered counseling, his
family circumstances, etc.   However, an ability to argue for an alternative interpretation of the
evidence is not enough to show that the Judge weighed the evidence in a manner that was arbitrary,
capricious, or contrary to law.  See, e.g., ISCR Case No.15-07062 at 2 (App. Bd. Nov. 21, 2017).
The Judge examined the relevant evidence and articulated a satisfactory explanation for the
decision.  The 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).  See also Directive, Encl. 2, App. A ¶ 2(b):  “Any
doubt concerning personnel being considered for national security eligibility will be resolved in
favor of the national security.”
Order
The Decision is AFFIRMED.  
Signed: James E. Moody              
 James E. Moody
Administrative Judge
Member, Appeal Board
Signed: James F. Duffy                
James F. Duffy
Administrative Judge
Member, Appeal Board
Signed: Charles C. Hale                
Charles C. Hale
Administrative Judge
Member, Appeal Board