ISCR Case No. 23-00101

_______________________________________________ ) In the matter of: )

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ISCR Case No. 23-00101

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) Applicant for Security Clearance ) _______________________________________)

DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 Date: June 4, 2025

FOR GOVERNMENT Cassie Ford, Esq., Department Counsel Andrea M. Corrales, Esq., Deputy Chief Department Counsel FOR APPLICANT Johnny L. Riley, Sr., Personal Representative The Department of Defense (DoD) declined to grant Applicant a security clearance. On March 9, 2023, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision – security concerns raised under Guideline G (Alcohol Consumption), Guideline H (Drug Involvement and Substance Misuse), and Guideline E (Personal Conduct) of the National Security Adjudicative Guidelines (AG) of Security Executive Agent Directive 4 (effective June 8, 2017) and DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). On February 24, 2025, Defense Office of Hearings and Appeals Administrative Judge Stephanie C. Hess granted Applicant national security eligibility. Under Guideline G, the SOR alleged three arrests and convictions for Driving While Intoxicated (DWI), occurring in 2002, 2011, and 2020. Under Guideline H, the SOR alleged five concerns: that Applicant used marijuana with varying frequency from about 2006 to September 2011; that he used marijuana after being granted access to classified information in 2007; that marijuana was found in his vehicle during the 2011 DWI arrest; that Applicant tested positive for

marijuana on a urinalysis test administered in August 2011; and that cocaine was found in Applicant’s vehicle during the 2020 arrest. The alcohol and drug allegations were cross-alleged under Guideline E. Under Guideline E, the SOR also alleged that Applicant falsified material facts on five security clearance applications (SCAs) and during two personal subject interviews (PSIs), for a total of 13 falsification allegations. The Judge found favorably for Applicant on all allegations, concluding that Applicant mitigated the Guideline G and H security concerns (as well as the cross-alleged Guideline E concerns), and that the Government failed to establish a prima facie case for the 13 falsification allegations. The Government appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Background The allegations under Guideline G and H arise from three DWI arrests over the course of 18 years and events that flowed from those arrests, as described in pertinent part below. Guidelines G and H In September 2002, on the night of the first incident, Applicant was pulled over for speeding after drinking at a bar. A breathalyzer test indicated a blood alcohol content (BAC) level of 0.10, and Applicant was arrested and charged. On the advice of his attorney, Applicant voluntarily enrolled in two alcohol-related education programs, one of which was the Virginia Alcohol Safety Action Program (ASAP). Under a plea agreement, Applicant was found guilty of Petty Driving Under the Influence (DUI) and sentenced to one year of probation and one year of restricted license. During his first background investigation in 2006, Applicant was asked about the incident and represented that he no longer drove after drinking. In August 2011, Applicant had a second traffic incident, which led to several of the allegations in issue. By this time, Applicant had held a security clearance for about four years while working as a federal contractor. On the night in issue, Applicant attended his own bachelor party, at which he admittedly drank alcohol and smoked marijuana before driving home. Pulled over for speeding, Applicant failed a field sobriety test, and a breathalyzer test indicated a BAC of 0.10. While searching Applicant’s car, police found a small bag of marijuana on the passenger side. Applicant told the officer that he had people in his car earlier that night and contended that they must have left the baggie. At hearing, Applicant admitted that he was uncertain whether anyone else was in his car that evening but remained adamant that someone else left the bag in the car. Applicant was arrested and charged with DWI and Possession of Marijuana. As part of his plea negotiations, Applicant was given a choice to be charged with possession of marijuana or to have an interlock system installed in his car. Applicant chose to have the interlock system installed, and the drug charge was dropped. After pleading guilty to DWI, Applicant was sentenced to a year of probation and a year of driving with an interlock system. Applicant enrolled in Virginia ASAP in August 2011, shortly after his arrest. During the background investigation for Applicant’s 2018 SCA, the investigator obtained Applicant’s ASAP records, which revealed that Applicant tested positive for marijuana on an intake urinalysis and self­

reported marijuana use from 2006 through September 2011. When confronted with this unreported information during 2019 background interviews, Applicant admitted that he tested positive during his intake urinalysis but claimed he did not recall using marijuana from 2006 forward. Although Applicant initially asserted that he only entered ASAP for alcohol use, he later admitted that he was required to attend the drug programming within ASAP as well because of his positive urinalysis upon intake. Government Exhibit (GE) 6 at 42–43, 45. At hearing, Applicant testified that the ASAP records were “hearsay” and incorrect, that he never self-reported using marijuana from 2006 to 2011, and that his use at his bachelor party “was [his] first time ever smoking it” as an adult. Transcript (Tr.) at 41. In November 2020, Applicant had a third traffic incident, which again led to alcohol and drug charges. According to Applicant, a friend visited him and brought him one high-alcohol-content beer. When Applicant subsequently attempted to drive to the gas station, police pulled him over for speeding or swerving. During a search of Applicant’s car, police found empty alcoholic seltzer and beer cans in either the trunk or backseat, a small baggie with a white powder residue on the driver’s side door, and a marijuana grinder in the back seat. The police also found a straw with powder residue on Applicant’s person. Applicant told the officer that the cans were left by friends he had in his car a few weeks prior and that the baggie did not belong to him. He initially stated that he did not know the baggie was there but subsequently acknowledged he saw it in the car a few days earlier. He asserted that he thought the baggie contained screws and had no idea it contained drugs. Applicant submitted to a breathalyzer test, which indicated a BAC of 0.15, and a second test at the police station showed a BAC of 0.12. Applicant was arrested and charged with misdemeanor DWI, 2nd offense within 5-10 years, and Possession of Schedule I or Schedule II controlled substance. Applicant pleaded guilty to DWI and was sentenced to 90 days in jail (85 days suspended), ASAP attendance, unsupervised probation until March 2024, a restricted license until March 2024, and installation of an interlock system. The charge for possession of a Schedule I or II controlled substance was disposed of by nolle prosequi. Applicant served his five-day jail sentence in March 2021 and attended Virginia ASAP from June 2021 to August 2021. At the hearing, Applicant reaffirmed his earlier claim that he did not know the baggie was in the car prior to being stopped for drunk driving. He asserted that friends must have dropped the baggie at some point in the past. Applicant claimed that he did not know his friends used illegal drugs until this 2020 DWI arrest and that, although his friends never confessed to using drugs, he is now confident that two of his friends used them. Over the years, Applicant has made various vows to stop drinking or to stop drinking and driving. In August 2006, Applicant told a background investigator that there was no likelihood of a second DUI because he had stopped driving after drinking alcohol. After his second DUI, Applicant asserted in his 2012 SCA that he was abstained from alcohol indefinitely. He reiterated this resolve during his subsequent background interview in July 2012, stating that he had not consumed any alcohol since August 2011 because he had “too much to lose.” GE 6 at 51, 52. Since his third and most recent DWI, Applicant has made vague and arguably inconsistent statements regarding his current alcohol habits. In a May 2022 counseling session, Applicant reported that he drinks socially on rare occasions but has had no alcohol since his November 2020 DWI arrest.

Applicant Exhibit (AE) F at Enclosure 4a. In his response to interrogatories in February 2023, Applicant reported that his five-day jail sentence in March 2021 was a life-changing event, after which he stopped drinking alcohol. GE 6 at 5. At hearing, Applicant testified both that he stopped drinking the night of his November 2020 DUI and that he had not “touched a drop of alcohol” since he got his current job, which was in April 2021. Tr. 79, 80. The Judge found as fact that Applicant “has not consumed any alcohol since November 2020.” Decision at 5. In her Guideline G analysis, the Judge adopted Applicant’s representations that he reduced or ceased his alcohol consumption after each DWI, that he did not regularly consume any alcohol between his mother’s death in November 2018 and his DWI arrest in November 2020, and — as discussed above — that he has not consumed any alcohol since that arrest. The Judge relied on the passage of time since the last DWI in November 2020 and Applicant’s stated abstinence in concluding that “Applicant’s past alcohol consumption and alcohol-related incidents occurred under circumstances that are unlikely to recur.” Id. at 13. In her Guideline H analysis, the Judge again accepted Applicant’s version of events — that he first tried marijuana experimentally while in high school; that he used marijuana twice in college with his last use in 2003; that his only use of an illegal substance as an adult was a single puff on a marijuana joint at his bachelor party in 2011; and that this single puff apparently resulted in his positive intake urinalysis at ASAP. Acknowledging that his use of marijuana while holding a security clearance “places a heavy burden on Applicant,” the Judge nevertheless found that Applicant had mitigated the alleged concerns, highlighting “the circumstances surrounding his one-time use of marijuana, the length of time that has passed since that single use, and his remorse for his actions.” Id. at 15 (emphasis added). In concluding that there was insufficient evidence of cocaine possession, the Judge relied on Applicant’s denials and the fact that the 2020 possession charge was nolle prossed. Guideline E Applicant completed five SCAs: in 2006, 2012, 2015, 2018, and 2022. The SOR alleged that Applicant falsified those five SCAs and two related PSIs by omitting material facts about the alcohol and drug incidents described above, for a total of 13 falsifications.1 We have listed below the pertinent SCAs and PSIs, what Applicant disclosed about his alcohol and drug incidents, and what he failed to disclose as alleged in the SOR. February 2006 SCA Failed to disclose September 2002 DUI arrest and conviction (SOR ¶ 3.o). June 2012 SCA Disclosed 2002 and 2011 DUI arrests and convictions and referenced marijuana in car at 1 The alcohol and drug concerns described above were cross-alleged under Guideline E, and the Judge found them mitigated for the same reasons that she applied under Guideline G and H.

time of 2011 arrest; Failed to disclose marijuana use from about 2006 to September 2011 (SOR ¶ 3.m); and Failed to disclose marijuana use after being granted access to classified information in September 2007 (SOR ¶ 3.n). September 2015 SCA Disclosed 2011 DUI and ASAP; Failed to disclose marijuana use from about 2006 to September 2011 (SOR ¶ 3. k); and Failed to disclose that he used marijuana after being granted access to classified information in September 2007 (SOR ¶ 3.l). March 2018 SCA In Section 23 (Illegal Use of Drugs), referenced 2011 arrest for DUI and marijuana and 2011 voluntary enrollment in drug counseling; In Section 22 (Police Record), failed to disclose 2002 and 2011 arrests and convictions for DUI/DWI (SOR ¶ 3.g); Failed to disclose marijuana use from about 2006 to September 2011 (SOR ¶ 3. h); and Failed to disclose marijuana use after being granted access to classified information in September 2007 (SOR ¶ 3.i). September 2018 PSI Denied having used illegal drugs in the last seven years, including while having access to classified information (SOR ¶ 3.j). July 2022 SCA “2nd Disclosed 2020 arrest for DUI within 10 years” and possession of controlled substance; Failed to disclose 2002 and 2011 arrests and convictions for DUI/DWI (SOR ¶ 3.c); and Failed to disclose marijuana use from 2006 through 2011, including after being granted access to classified information in September 2007 (SOR ¶ 3.d). September 2022 PSI Denied having ever tested positive on a drug test, failing to disclose that he tested positive for marijuana on the ASAP urinalysis in about August 2011 (SOR ¶ 3.e); and Denied any use of illegal drugs in last seven years, failing to disclose use of cocaine around the time of November 2020 arrest (SOR ¶ 3.f). In the Judge’s analysis, she highlighted that Applicant’s primary explanation for his failure to disclose his reportable incidents was that “he believed that once he disclosed the information, it was known to the Government and it was not necessary to disclose the information again.”

Decision at 17. She noted that this explanation was buttressed by the fact that Applicant failed in some instances to disclose information that he had disclosed on earlier SCAs. The Judge also noted that Applicant was confused by the wording of the SCAs. Specifically, she noted, Applicant understood the use of the term “other than previously listed” as used in Sections 22 and 23 to mean that if the requested information at been previously listed on any SCA, he did not have to list it again. Additionally, the Judge noted that Applicant’s assertions that he rushed through the forms and did not pay enough attention was supported by the record, as the SCAs contained errors: “He disclosed reportable information in the wrong sections and omitted information where he should have included it on his 2012 and 2018 [SCAs].” Id. at 18. The Judge acknowledged that this explanation of confusion and carelessness did not address all the alleged Guideline E concerns. She noted that Applicant intentionally failed to disclose his 2002 DWI on his 2006 SCA but highlighted that he did so on the advice of his attorney and because he was not convicted of a DWI. (Applicant was instead convicted of “Petty DUI.”) The Judge also acknowledged Applicant’s failure at several junctures to disclose his marijuana use: Applicant did not disclose his 2011 one-time marijuana use as required on his June 2012, September 2015, or March 2018 [SCAs], or during his September 2018 PSI as required. He did not disclose this information until March 2019 in a follow-up PSI when he was confronted by the investigator about testing positive for marijuana one time in 2011. Applicant described the circumstances of his use, including the stupidity of his conduct, and stated that his failure to disclose it was an oversight and that the incident had slipped his mind. He has consistently denied that he has ever intentionally falsified information during any of his background investigations. Id. In the quoted paragraph, the Judge neglected to include that Applicant also omitted the marijuana use and positive urinalysis on his most recent SCA in July 2022. She did, however, address Applicant’s denial of marijuana use and any positive urinalysis during his subsequent September 2022 PSI, finding that “he thought given the context of the investigator’s questions that the investigator asked him if he had failed any drug tests in the last seven years, not if he had ever [failed] a drug test.” Id. at 17. In summary, the Judge concluded her Guideline E analysis as follows: Given the record evidence as a whole, particularly the consistent difficulties that Applicant has had in properly disclosing information during his background investigations, I find that Applicant’s omissions during his background investigations were unintentional. There is nothing in the record that suggests he has not disclosed all of the information that the Government has sought from him since 2019. He just did not disclose it correctly. Since I conclude that Applicant’s alleged falsifications were not deliberate, either on any of his [SCAs] or during his background interviews, neither AG ¶¶ 16(a) or 16(b) applies to any of the falsification allegations.

Id. at 18. Although she concluded that the Government did not establish a prima facie case, the Judge alternatively found the Guideline E concerns mitigated after a brief paragraph in which she cited to “steps to rectify his lack of understanding of how to properly complete an [SCA] and respond to questions during a PSI,” his abstinence, and his disassociation from the people he previously used marijuana with. Id. at 18–19.

There is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government produces evidence raising security concerns, an applicant bears the burden of persuasion concerning mitigation. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions 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). “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.” AG ¶ 2(b). On appeal, the Government challenges the Judge’s conclusion that the Government failed to establish a prima facie case under Guideline E, her mitigation analyses under Guidelines G, H, and E, and her application of the Whole-Person Concept. When a judge’s ruling or conclusions are challenged, we must determine whether they are arbitrary, capricious, or contrary to law. Directive ¶ E3.1.32.3. A judge’s decision can be arbitrary or capricious if: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion. See ISCR Case No. 95-0600, 1996 WL 480993 at *3 (App. Bd. May 16, 1996) (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). The Judge’s Credibility Determination Although the Government challenges many aspects of the Judge’s decision, the central issue raised by the appeal is the Judge’s favorable credibility determination of Applicant — that the Judge believed and relied upon Applicant’s version of events about his DUIs, his drug history, and his omissions on SCAs and during PSIs. That favorable determination pervaded the Judge’s findings of fact as well as her analyses under Guidelines G, H, and E. For the reasons detailed below, we conclude that the Judge erred in adopting Applicant’s narrative, rendering her decision arbitrary and capricious and mandating reversal. While the Board is required to give deference to a judge’s credibility determination, that deference has its limits. The Board must consider whether a judge’s acceptance of an applicant’s explanation for his conduct is consistent with a reasonable interpretation of the record evidence as a whole. As we have previously held, when the record contains a basis to question an applicant’s credibility (e.g., contradictory evidence, inconsistent statements), the judge should address that

aspect of the record explicitly, explaining why she found the applicant’s version of events to be worthy of belief. Failure to do so suggests that the judge simply substituted a favorable impression of an applicant’s demeanor for record evidence. E.g., ISCR Case No. 20-01450 at 9 (App. Bd. Jun. 9, 2022). A credibility determination may be set aside or reversed if it is unreasonable, contradicts other findings, is based on an inadequate reason, is patently without basis in the record, or is inherently improbable or discredited by undisputed fact. “When a witness’s story is contradicted by other evidence or is so internally inconsistent or implausible that a reasonable fact finder would not credit it, we can find error despite the deference owed a Judge’s credibility determination.” ISCR Case No. 10-03886 at 3 (App. Bd. Apr. 26, 2012), (citing Anderson v. Bessemer City, 470 U.S. 564 at 575 (1985)). In accepting Applicant’s version of events, the Judge failed to consider the inherent implausibility of Applicant’s narrative and the significant evidence that contradicted his version. Looking first at the Guideline G case, the Judge unquestioningly accepted Applicant’s assertions, to include: that he seldom drank alcohol after his 2002 DUI; that he “did not regularly consume alcohol” between 2009 and 2017, although he was arrested and convicted of his second DUI in 2011; that he drank no alcohol between November 2018 and November 2020; that he was pulled over for DUI on the first occasion that he drank alcohol; and that he has consumed no alcohol since that November 2020 arrest for DUI. Decision at 3, 4. To highlight just a few aspects of this improbable narrative, the Judge chose to believe that Applicant consumed no alcohol beginning in November 2018, drank one 16-ounce high-alcohol beer in November 2020, promptly got pulled over for a third DUI, registering a BAC of .15, and has consumed no alcohol since. The Judge never mentioned — much less weighed — the sheer improbability, bad luck, and implausibility of this story. The evidence that the Judge failed to consider includes: the fact Applicant had empty cans of beer and hard seltzer in his car at the time of his 2020 arrest, refuting his assertion that he had not consumed alcohol since 2018; the improbability that Applicant, weighing about 280 lbs., would register a BAC of .15 after one high- alcohol-content beer; and Applicant’s inconsistent statements about his drinking habits since the last DWI. As to the last factor, the Government highlights that “the only thing consistent is Applicant’s inconsistency―among other things, he has been unable to consistently identify (1) his date of last alcohol usage, (2) the period of time he was abstinent from alcohol following his 2011 DUI, or (3) his general history of alcohol use.” Appeal Brief at 26. When faced with conflicting evidence, a judge is required to assess and resolve the conflicts based upon a careful evaluation of factors such as the comparative reliability, plausibility, and ultimate truthfulness. See ISCR 05-06723 at 4 (App. Bd. Nov. 14, 2007). In her Guideline G analysis, the Judge failed to address and reconcile the significant evidence that contradicted Applicant’s narrative. Moreover, in accepting Applicant’s improbable explanation of a limited drinking history punctuated by three DWIs, the Judge treated each DWI as an isolated event and failed to address the obvious pattern of recurring alcohol incidents despite prior avowals not to drink or not to drink and drive. As a related issue, the Judge failed to consider whether a purported four-year period of sobriety was sufficiently mitigating in light of that pattern. The Judge’s uncritical acceptance of Applicant’s narrative regarding the Guideline G allegations constituted error.

Turning to the Guideline H case, the Judge appears to have again adopted unquestioningly Applicant’s version of events, to include: that he used marijuana just twice in college with his last use in 2003; that he “took one hit off a joint” at his bachelor party in August 2011;2 that the “one hit” resulted in a positive urinalysis upon his later enrollment in ASAP; that the marijuana found in his car in August 2011 during the DUI stop was not his but instead left by friends; that the marijuana grinder found in his car during the 2020 DUI stop was not his but instead left by friends; and that the cocaine found in his car during the 2020 DUI stop was also left by friends. Again, to highlight just a few aspects of this improbable narrative, the Judge chose to believe that Applicant has used marijuana only once in the past 20 years; that he took only “one puff”;3 and that this one-time de minimis use resulted in a positive urinalysis upon his subsequent enrollment at ASAP. As in her Guideline G analysis, the Judge never considered the utter implausibility of this chain of events. Nor did she explicitly address — as required — the significant evidence to the contrary, to include Applicant’s disclosure to ASAP counselors that he used marijuana from 2006 to 2011 and the drugs and paraphernalia found in Applicant’s car during police stops in 2011 and 2020 when he was the sole occupant of the vehicle. “When the record contains conflicting evidence, the judge must carefully weigh the evidence in a reasonable, common sense manner and make findings that reflect a reasonable interpretation of the evidence that takes into account all the record evidence.” ISCR Case No. 99-0435 at 2 (App. Bd. Sep. 22, 2000). Here, the Judge failed to acknowledge the conflicts, failed to weigh the evidence, and failed to make findings that took into account any evidence beyond Applicant’s testimony. In sum, our review of the record convinces us that the Judge unreasonably substituted a favorable impression of Applicant for record evidence and failed to examine and consider relevant evidence. Guideline E Allegations and Findings Having determined that the Judge fundamentally erred in her credibility determination, we need not analyze in exhaustive detail the 13 Guideline E allegations, the Judge’s analysis, and the Government’s challenges on appeal. Regarding the allegations of Applicant’s failure to disclose his DWIs consistently and completely, it bears noting that Applicant filled out five SCAs over a 16-year period and that he disclosed all of his DWIs (at the time) on one application and some of his DWIs on two other applications. The Judge’s findings about Applicant’s lack of intent are arguably sustainable on some of the DWI-related allegations. The allegations concerning Applicant’s failure to disclose marijuana use are another matter entirely. Applicant tested positive for marijuana in August 2011 while holding a security clearance. Even accepting Applicant’s improbable story that he only used marijuana on a single occasion, he was required to disclose the use but never did so — not on his 2012 SCA, not on his 2015 SCA, and not on his 2018 SCA. Confronted by the background investigator after his 2018 SCA submission, Applicant admitted the positive urinalysis. On his 2022 application, however, Applicant again failed to disclose marijuana use while holding a clearance, and, during his 2 Decision at 3. 3 GE 6 at 43.

subsequent PSI, Applicant denied ever having failed a urinalysis test. In the face of this record evidence, the Judge inexplicably concluded that “Applicant’s omissions during his background investigations were unintentional” and that the Government had not met its burden, or conversely that the concern was mitigated. Those conclusions ignore important aspects of the case and are not sustainable. In August 2011, the following events occurred: Applicant was arrested for DWI and marijuana possession; he entered ASAP for alcohol; he tested positive for marijuana; and he was subsequently required to attend the ASAP drug program as well. Those are memorable events. When Applicant filled out his June 2012 SCA, the events were recent and fresh in his memory. Applicant’s explanation that he forgot the marijuana use when filling out the SCA defies logic and common sense, as does the Judge’s acceptance of that excuse. His repeated omission of the marijuana use over three subsequent SCAs and his denial of a positive urinalysis during his 2022 interview further support a conclusion that Applicant made the purposeful, intentional decision not to disclose that he used marijuana while holding a clearance. The Judge erred in her conclusion that the Government failed to establish its prima facie case for the related SOR allegations (SOR ¶¶ 3.d, 3e, 3.h, 3.i, 3.k, 3.l, 3.m, and 3.n) and in her alternative conclusion that Applicant mitigated the concerns.

The Judge’s decision in this matter was arbitrary and capricious in that it substituted a favorable credibility determination for record evidence, failed to consider relevant evidence, failed to consider important aspects of the case, and offered an explanation for the decision that runs contrary to the record evidence. The Judge’s decision is not sustainable under the Egan standard and must be reversed. See ISCR Case No. 22-01002 at 4 (App. Bd. Sep. 26, 2024) (Reversal is appropriate when the Board concludes from the record that a contrary formal finding or overall grant or denial of security clearance eligibility is the clear outcome.).

The favorable decision in ISCR Case No. 23-00101 is REVERSED. Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Chair, Appeal Board Signed: Allison Marie Allison Marie Administrative Judge Member, Appeal Board Signed: Jennifer I. Goldstein Jennifer I. Goldstein Administrative Judge Member, Appeal Board