A decided public DOHA case, shown for research, not advice or a prediction.

ISCR Case No. 00-0077

Appeal Board

Decided Jan 5, 2001 · Administrative Judge Richard A. Cefola · Appeal

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Appeal at a glance

The appeal involved a review of an Administrative Judge's decision denying the applicant a security clearance based on financial considerations, personal conduct, and criminal conduct. The applicant appealed, arguing that the decision was arbitrary and capricious. The Board affirmed the Administrative Judge's decision, finding no harmful error in the proceedings.

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Appearances

RONG>APPEARANCES

FOR GOVERNMENT

<SPAN STYLE="

Procedural History

>Administrative Judge Richard A. Cefola issued a decision dated July 28, 2000, in which he concluded it is not clearly consistent

with the national interest to grant or continue a security clearance for Applicant. Applicant appealed. The Board affirms the

Administrative Judge's decision for the reasons explained below.

The Board has jurisdiction on appeal under Executive Order 10865 and Department of Defense Directive 5220.6, dated January 2,

1992, as amended.

Applicant's appeal presents the following issue: Was the Administrative Judge's decision arbitrary, capricious and contrary to law?

<CENTER>Procedural History</ CENTER>

The

Appeal Issues

efense Office of Hearings and Appeals issued to Applicant a Statement of Reasons (SOR) dated March 3, 2000. The SOR

was based on Guideline F (Financial Considerations), Guideline E (Personal Conduct) and Guideline J (Criminal Conduct).

Applicant declined a hearing. Department Counsel prepared a File of Relevant Material (FORM). Applicant replied to the

FORM. The case was then assigned to the Administrative Judge.

The Administrative Judge issued a written decision, dated July 28, 2000, in which he concluded it is not clearly consistent with the

national interest to grant or continue a security clearance for Applicant. The case is before the Board on Applicant's appeal from

the Administrative Judge's adverse decision.

<CENTER>Appeal Issue</CENTER>

Applicant offers new evidence on appeal and seeks to have the Board: (1) conduct a de novo review of that new evidence and the

record evidence before the Administrative Judge; and (2) reach favorable conclusions about his security eligibility under Guideline

F. For the reasons that follow, Applicant's appeal fails to demonstrate the Judge erred.

First, the Board cannot consider new evidence on appeal. Directive, Additional Procedural Guidance, Item E3.1.29. Furthermore,

the Administrative Judge's factual findings cannot fairly be challenged on the basis of evidence that was not made available during

the proceedings below. Applicant had the opportunity to present evidence and explanations for that evidence for consideration by

the Judge during the proceedings below. Applicant is not entitled to offer additional evidence at this late stage of his case.

Second, to the extent Applicant challenges various factual findings by the Administrative Judge without relying on new evidence,

his challenges fail. The Judge's challenged factual findings reflect a reasonable interpretation of the record evidence and are

sustainable under Item E3.1.32.1 of the Directive's Additional Procedural Guidance. Furthermore, none of Applicant's arguments

show the Judge's conclusions about Applicant's conduct and circumstances a

Conclusion

e arbitrary, capricious, or contrary to law. Directive,

Additional Procedural Guidance, Item E3.1.32.3.

Third, Applicant fails to raise any challenge to the Judge's adverse findings and conclusions under Guideline E (Personal Conduct)

and Guideline J (Criminal Conduct). The Judge's adverse findings and conclusions u