ISCR Case No. 00-0525

ation reflect a reasonable interpretation of the record evidence and are consistent with pertinent provisions of the Directive.</P>

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STYLE="font-size: 11pt"><STRONG>FOR GOVERNMENT</STRONG></SPAN></P>

<P STYLE="text-align: CENTER"><SPAN STYLE="font-size: 11pt">Martin H. Mogul, Esq., Department Counsel</ SPAN></P>

<P STYLE="text-align: CENTER"><SPAN STYLE="font-size: 11pt"><STRONG>FOR APPLICANT</STRONG></SPAN></P>

<P STYLE="text-align: CENTER"><SPAN STYLE="font-size: 11pt">Roy C. Dickson, Esq.</SPAN></P>

<P>Administrative Judge Barry M. Sax issued a deci

on dated June 1, 2001 in which he concluded it is not clearly consistent with the national interest

to grant or continue a security clearance for Applicant. Applicant appealed. For the reasons set forth below, the Board affirms the Administrative

Judge's decision.</P>

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

1992 as amended.</P>

<P>Applicant's appeal presents the following issues: (1) Did the Administrative Judge err in applying the Adjudicative Guidelines to Applicant's case?

and (2) Was the Administrative Judge's decision arbitrary, capricious and contrary to law?</P>

<P><CENTER><STRONG>Procedural History</STRONG></ CENTER>

</P>

<P>The Defense Office of Hearings and Appeals issued to Applicant a Statement of Reasons (SOR) dated November 29, 2000. The SOR was

based on Guideline F (Financial Considerations). A hearing was held on April 12, 2001.</P>

<P>The Administrative Judge issued a written decision, dat

June 1, 2001, 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 Judge's unfavorable security

clearance decision.</P>

<P><CENTER><STRONG>Scope of Review</STRONG></CENTER>

</P>

<P>On appeal, the Board does not review a case <EM>de novo</EM>. Rather, the Board addresses the material issues raised by the parties to determine whether

there is factual or legal error. There is no presumption of error below, and the appealing party must raise claims of error with specificity and

identify how the Administrative Judge committed factual or legal error. <EM>See</EM> Directive, Additional Procedural Guidance, Item E3.1.32. <EM>See, e.g.,</EM>

ISCR Case No. 00-0050 (July 23, 2001) at pp. 2-3 (discussing reasons why party must raise claims of error with specificity).</P>

<P>When an Administrative Judge's factual findings are challenged, the Board must determine whether "[t]he Administrative Judge's findings of fact

are supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary

evidence. In making this review, the Appeal Board shall give deference to the credibility determinations of the Administrative Judge." Directive,

Additional Procedural Guidance, Item E3.1.32.1. The Board must consider not only whether there is record evidence supporting a Judge's

findings, but also whether there is evidence that fairly detracts from the weight of the evidence supporting those findings. <EM>See, e.g.</EM>, ISCR Case

No. 99-0205 (October 19, 2000) at p. 2.</P>

<P>When a challenge to an Administrative Judge's rulings or conclusions raises a question of law, the Board's scope of review is plenary. <EM>See</EM> DISCR

Case No. 87-2107 (September 29, 1992) at pp. 4-5 (citing federal cases).</P>

<P><CENTER><STRONG>Appeal Issues</STRONG><A HREF="#N_1_"><SUP> (1)</SUP></A> </CENTER>

</P>

<P>1. <SPAN STYLE="text-decoration: underline">Did the Administrative Judge err in applying the Adjudicative Guidelines in Applicant's case</SPAN>? Applicant contends that the Administrative Judge

did not properly apply the Adjudicative Guidelines pertaining to Guideline F (Financial Considerations). In support of that contention, Applicant

cites Title 32 of the Code of Federal Regulations, Part 154, Appendix F. The provisions quoted by Applicant are not the current version of the

Adjudicative Guidelines. The current version of the Adjudicative Guidelines is contained both in the copy of the Directive provided to all

applicants when they are sent an SOR and in Title 32 of the Code of Federal Regulations, Part 147. At the hearing, Appellant acknowledged that

she had received a copy of the Directive with the SOR sent to her. <EM>See</EM> Hearing Transcript at p. 3.<A HREF="#N_2_"><SUP> (2)</SUP></A></P>

<P>In the decision below, the Administrative Judge cited and applied the current version of the Financial Considerations Adjudicative Guidelines.

Considering the record as a whole, the Judge: had a rational basis for: (a) applying Financial Considerations Disqualifying Guidelines 1<A HREF="#N_3_"><SUP> (3)</SUP></A> and 3<A HREF="#N_4_"><SUP> (4)</SUP></A>;

and (b) concluding that none of the Financial Considerations mitigating conditions applied.</P>

<P>2. <SPAN STYLE="text-decoration: underline">Was the Administrative Judge's decision arbitrary, capricious and contrary to law? </SPAN>Applicant argues that she was an innocent spouse, that

holding her responsible for her ex-husband's taxes is inequitable, and that her conduct does not constitute a history of living beyond her means.

The Board construes these points as an argument that the decision below is arbitrary, capricious and contrary to law.</P>

<P>Much of Applicant's appeal relies heavily on new evidence, which the Board is prohibited from considering on appeal. Directive, Additional

rocedural Guidance, Item E3.1.29. The Board will consider Applicant's arguments only to the extent they are based on record evidence that was

before the Administrative Judge.</P>

<P>A review of the record evidence shows that the Administrative Judge's deci