DATE: August 18, 2006
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SSN: -------------
Applicant for Security Clearance
PPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Robert E. Coacher, Esq., Department Counsel
FOR APPLICANT
Jerry L. Wood, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 8, 2005, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision--security concerns raised under Guideline G (Alcohol Consumption) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On January 17, 2006, after the hearing, Administrative Judge James A. Young denied Applicant's request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raised the following issues on appeal: whether the Administrative Judge erred in admitting and considering Government Exhibit 4; whether the Administrative Judge erred in making material findings; whether the Administrative Judge's unfavorable clearance decision under Guideline G is arbitrary, capricious, or contrary to law.
(1) Government Exhibit 4 is a state court Judgment and Sentence finding that shows Applicant was found not guilty of the 2003 Driving While Intoxicated charge referenced in SOR paragraph 1.b. Applicant argues that it was error for the Administrative Judge to admit that document into evidence and consider it in reaching his decision, over Applicant's objection, because the offense was the subject of a subsequent state court expunction order. (1) The Board does not find this argument persuasive.
The federal government has a compelling interest in protecting classified information. Department of Navy v. Egan, 484 U.S. 518, 527 (1988). It is well-settled that officers of the federal government are not bound by state law when carrying out their official duties unless there is a specific act of Congress that expressly indicates otherwise. Accordingly, whatever effect that expunction of an applicant's criminal record might have under state law, such an effect is not binding on the federal government in investigating or adjudicating an applicant's security eligibility. See, e.g., ISCR Case No. 00-0423 at 3 (App. Bd. Jun. 8, 2001).
(2) Applicant argues that the Administrative Judge erred in finding that Applicant's 2003 and 2000 Driving While Intoxicated arrests were alcohol-related because Applicant was found not guilty of the 2003 incident and was found guilty of Obstruction of a Highway/Passageway with respect to the 2000 incident. The Board does not find this argument persuasive.
The ultimate state court dispositions of the 2000 and 2003 incidents did not preclude the Administrative Judge from finding that the incidents were alcohol-related. See ISCR Case No. 02-01181 at 3-4 (App. Bd. Jan. 30, 2004). The Administrative Judge's material findings with respect Applicant's conduct of security concern reflect a reasonable or plausible interpretation of the record evidence. The Board does not review a case de novo. Considering the record evidence as a whole, the Judge's findings that the 2000 and 2003 incidents were alcohol-related are sustainable.
(3) Applicant argues that the Administrative Judge's unfavorable decision should be reversed because Applicant's four alcohol-related, criminal incidents do not demonstrate a pattern, and there is a nine year separation in time between the first incident and the other three. The Board does not find this argument persuasive.
The application of disqualifying and mitigating conditions does not turn simply on a finding that one or more of them applies to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole. See, e.g., ISCR Case No. 01-14740 at 7 (App. Bd. Jan.15, 2003). Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. An applicant's disagreement with the Judge's weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law.
In this case, the Administrative Judge made sustainable findings that Applicant was involved in alcohol-related criminal incidents in 1991, 2000, 2002 and 2003, and that he continues to consume alcohol to the point of intoxication once or twice a year. (2) The Judge also considered the fact that the 2003 DWI arrest resulted in an acquittal and was expunged. The Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant mitigating conditions. The Judge articulated a rational basis for applying the relevant disqualifying conditions and for not favorably applying any mitigating conditions in this case. He reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome the government's security concerns. Given the record that was before him, the Judge's ultimate unfavorable clearance decision under Guideline G is not arbitrary, capricious, or contrary to law.
The decision of the Administrative Judge denying Applicant a clearance 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: Mark W. Harvey
Mark W. Harvey
Administrative Judge
Member, Appeal Board
1. Applicant's Exhibit A.
2. Decision at 2-3.