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ISCR Case No. 01-06166

Appeal Board

Decided Oct 25, 2001 · Administrative Judge Michael Y. Ra'anan · Appeal

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The appeal involved a challenge by Department Counsel against an Administrative Judge's favorable decision granting a security clearance to the Applicant. The Board found that the Judge erred in applying mitigating conditions related to personal conduct, leading to a reversal of the decision.

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Appearances

orrected his earlier falsification before being confronted by an investigator. Applicant's belated, piecemeal disclosures did not constitute a prompt good-faith effort to correct his earlier falsification. Correction of Judge's errors mandates reversal. Favorable decision reversed.

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Procedural History

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DATE: October 25, 2001

<HR>

In Re:

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

Applicant for Security Clearance

<HR>

ISCR Case No. 01-06166

APPEAL BOARD DECISION AND REVERSAL ORDER

<S

Procedural History

ONG>APPEARANCES

FOR GOVERNMENT

Kathryn A. Trowbridge, Esq., Department Counsel

FOR APPLICANT

Pro Se

Administrative Judge John R. Erck issued a decision, dated July 18, 2001, in which he concluded it is clearly consistent with the national interest to grant or continue a

security clearance for Applicant. Department Counsel appealed. For the reasons set forth below, the Board

Appeal Issues

verses 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.

Department Counsel's appeal presents the following issues: (1) whether the Administrative Judge erred by applying certain Personal Conduct Mitigating Conditions; and

(2) whether the Administrative Judge's favorable security clearance decision should be reversed.

<CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued to Applicant a Statement of Reasons (SOR) dated March 21, 2001. The SOR was based on Guideline E (Personal

Conduct) and Guideline H (Drug Involvement). A hearing was held on May 30, 2001.

The Administrative Judge issued a decision, dated July 18, 2001, in which he concluded it is clearly consistent with the national interest to grant or continue a security

clearance for Applicant. Department Counsel appealed the Judge's favorable 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 Issues</CENTER>

The Administrative Judge entered a formal finding in favor of Applicant with respect to the SOR paragraph alleged under Guideline H. That favorable formal finding has

not been challenged by Department Counsel and, therefore, it is not at issue on appeal.

1. Whether the Administrative Judge erred by applying certain Personal Conduct Mitigating Conditions. The Administrative Judge found the following: (a) Applicant

falsified a security questionnaire he completed in May 1999 by denying any involvement with illegal drugs; (b) in January 2000, Applicant was interviewed by a Special

Agent of the Defense Security Service; (c) during that interview, Applicant initially was not truthful with the Special Agent about his involvement with illegal drugs; (d) after

the Special Agent confronted Applicant with suspicions about possible marijuana use provided to the Special Agent by a neighbor, Applicant admitted one-time use of

marijuana in Spring 1999; (e) upon further questioning by the Special Agent, Applicant disclosed his marijuana use while attending college; and (f) Applicant expressed

regret about falsifying the security questionnaire and initially not being truthful with the Special Agent during the interview. The Judge concluded the facts and

circumstances of Applicant's case warranted application of Personal Conduct Mitigating Condition 2<A HREF="#N_1_"> (1)</A> and Personal Conduct Mitigating Condition 3,<A HREF="#N_2_"> (2)</A> even though

Applicant did not completely satisfy either mitigating condition, because Applicant had disclosed his marijuana use to the Special Agent during the January 2000 interview.

Department Counsel challenges the Administrative Judge's application of Personal Conduct Mitigating Conditions 2 and 3.

(a) Personal Conduct Mitigating Condition 2. Department Counsel argues: (i) the Administrative Judge's application of Personal Conduct Mitigating Condition 2 is

contrary to prior Board decisions that hold it is not applicable to situations involving circumstances such as Applicant's; and (ii) even if Personal Conduct Mitigating

Condition 2 could be considered in connection with Applicant's case, the particular facts of Applicant's case would not support its application.</

Conclusion

rd as a whole, it is untenable for the Judge to conclude Applicant's belated, piecemeal disclosures constituted "prompt, good-faith

efforts to correct the falsification." See, e.g., ISCR Case No. 99-0201 (October 12, 1999) at pp. 3-4 (discussing what constitutes "prompt, good-faith" disclosure under

Personal Conduct Mitigating Condition 3). Given the record evidence in this case, the Judge had no rational basis for applying Personal Conduct Mitigating Condition 3 in

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