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

ISCR Case No. 01-01331

Appeal Board

Decided Feb 27, 2002 · Administrative Judge Michael Y. Ra'anan · Appeal

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The appeal involved a security clearance denial based on the applicant's foreign preference due to possession of a foreign passport. The applicant argued that the decision was arbitrary and capricious, but the Board affirmed the Administrative Judge's ruling, finding no error in the application of the ASDC3I memorandum regarding foreign passports.

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Appeal Board Decision

DOHA decision concerning possession and use of a foreign passport. Wisdom or desirability of ASDC3I memorandum is not subject to being litigated in DOHA proceedings. Adverse decision affirmed.

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DATE: February 27, 2002

<HR>

In Re:

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SSN: -----------

Applicant for Security Clearance

<HR>

ISCR Case No. 01-01331

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT

Williams S. Fields, Esq., Deputy Chief Department Counsel

FOR APPLICANT

Pro Se

Administrative Judge John G. Metz, Jr. issued a decision, dated October 16, 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 issue of whether the Administrative Judge's adverse security clearance decision is arbitrary, capricious, or contrary

to law.

<CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued to Applicant a Statement of Reasons (SOR) dated May 3, 2001. The SOR was based on

Guideline C (Foreign Preference). A hearing was held on August 14, 2001. The Administrative Judge issued a written decision, dated October

16, 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 security clearance decision.

<CENTER>Scope of Review</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 (discussing reasons why party must raise claims of error with specificity).

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. See, e.g., ISCR Case

No. 99-0205 (October 19, 2000) at p. 2.

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

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

<CENTER>Appeal Issue</CENTER>

Applicant does not specifically challenge the Administrative Judge's findings of fact about his possession and use of a foreign country (FC)

passport. However, Applicant argues: (1) the facts and circumstances of his possession and use of an FC passport do not demonstrate a foreign

preference under Guideline C; (2) the Administrative Judge failed to give due weight to Applicant's hearing testimony that he is willing to renounce

his FC citizenship if the Department of Defense will find that it is clearly consistent with the security interests of the United States that he do so; (3)

the Judge gave undue weight to the record evidence that Applicant may be eligible for retirement benefits from FC; (4) favorable security

clearance decisions have been made in other DOHA cases that are similar to Applicant's case; and (5) Applicant's life and work in the United

States show that he would not allow any foreign preference or foreign influence to affect his ability to safeguard classified information, and would

never betray the United States in any way.

Applicant's first and fourth arguments rely on favorable security clearance decisions made by DOHA Administrative Judges in four cases: ISCR

Case No. 99-0062 (September 15, 1999); ISCR Case No. 99-0295 (November 16, 1999); ISCR Case No. 99-0452 (September 24, 1999);

and ISCR Case No. 99-0511 (December 30, 1999). For the reasons that follow, the Board concludes those decisions do not show the Judge

erred in this case.

First, although decisions issued by Hearing Office Administrative Judges may be cited as persuasive authority, they are not legally binding on the

Administrative Judge in this case or on the Board in any case. See, e.g., ISCR Case No. 98-0619 (December 27, 1999) at p. 4 (discussing

precedential value of Administrative Judge

Appearances

eing litigated in DOHA proceedings. Adverse decision affirmed.

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Procedural History

learance

<HR>

ISCR Case No. 01-01331

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT

<SPAN STYLE="

Appeal Issues

ont-size: 11pt">Williams S. Fields, Esq., Deputy Chief Department Counsel

FOR APPLICANT

Pro Se

Administrative Judge John G. Metz, Jr. issued a decision, dated October 16, 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 issue of whether the Administrative Judge's adverse security clearance decision is arbitrary, capricious, or contrary

to law.

<CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued to Applicant a St

Appeal Issues

tement of Reasons (SOR) dated May 3, 2001. The SOR was based on