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ISCR Case No. 00-0601

Appeal Board

Decided Sep 21, 2001 · Administrative Judge Michael Y. Ra'anan · Appeal

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The appeal involved a review of an Administrative Judge's decision denying the applicant a security clearance based on findings of falsification of material facts in a security clearance application and a written statement. The applicant argued that the Judge erred in his findings and lacked a rational basis for the decision. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

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Appeal Board Decision

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Applicant for Security Clearance

<HR>

ISCR Case No. 00-0601

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT

Peregrine D. Russell-Hunter, Esq., Chief Department Counsel

FOR APPLICANT

Pro Se

Administrative Judge Joseph Testan issued a decision, dated June 15, 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.

This Board has jurisdiction on appeal under Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, as amended.

Applicant's appeal presents the following issues: (1) whether the Administrative Judge erred by finding that Applicant falsified material facts; and (2) whether the

Administrative Judge had a rational basis for his unfavorable security clearance decision.

<CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued a Statement of Reasons (SOR) dated October 20, 2000 to Applicant. The SOR was based on Guideline E

(Personal Conduct) and Guideline J (Criminal Conduct ). A hearing was held on March 1, 2001. The Administrative Judge issued a written decision, dated June 15,

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 adverse decision.

<CENTER>Appeal Issues</CENTER>

On appeal, the Board does not review a case de novo. 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. See Directive, Additional Procedural Guidance, Item E3.1.32. See, e.g., ISCR Case No. 00-0050 (July 23, 2001) at pp. 2-3.

In this case, Applicant makes arguments that the Board construes as raising two issues on appeal: (1) whether the Administrative Judge erred by finding that Applicant

falsified material facts; and (2) whether the Administrative Judge had a rational basis for his unfavorable security clearance decision. For the reasons that follow, the

Board concludes Applicant has failed to demonstrate the Judge erred.

(1) During the proceedings below, Applicant denied that he falsified a security clearance application in April 1999 or his March 23, 2000 written statement. The

Administrative Judge found Applicant's denials to be not credible, and concluded: (a) Applicant falsified a security clearance application in April 1999 by failing to

disclose a 1982 criminal offense, and (b) in the March 23, 2000 written statement, Applicant falsified material facts about his conduct that resulted in his 1982 arrest and

conviction.

Applicant's appeal brief contains factual assertions about the circumstances surrounding his completion of a security clearance application in April 1999, and the

preparation of his March 23, 2000 written statement. Some of Applicant's assertions go beyond the record evidence. Those assertions constitute new evidence, which

the Board cannot consider. Directive, Additional Procedural Guidance, Item E3.1.29. The Board will limit its consideration of Applicant's arguments to those that are

based on record evidence. Those arguments fail to demonstrate the Judge erred.

Applicant's denials of any intent to falsify the security clearance application in April 1999 or his written statement in March 2000 are relevant evidence. However, an

applicant's statements about his or her inten

Appearances

0-0601

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT

Peregrine D. Russell-

Procedural History

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.

This Board has jurisdiction on appeal under Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, as amended.

Applicant's appeal presents the following issues: (1) whethe

Appeal Issues

he Administrative Judge erred by finding that Applicant falsified material facts; and (2) whether the