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

ISCR Case No. 01-19879

Appeal Board

Decided Oct 29, 2002 · Administrative Judge Michael Y. Ra'anan · Appeal

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Appeal at a glance

The appeal involved a review of an adverse security clearance decision based on the applicant's history of marijuana use. The applicant argued that the Administrative Judge ignored evidence and misapplied the significance of his technical expertise. The Board affirmed the decision, finding no harmful error in the Judge's conclusions regarding the applicant's reliability and trustworthiness.

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<!-- There is a rebuttable presumption that an Administrative Judge considered all the record evidence unless the Judge specifically stated otherwise. There is no legal requirement that a Judge specifically cite and discuss every piece of record evidence. An applicant's technical expertise

Appearances

and contribution to defense programs do not make the applicant less likely to deliberately or inadvertently disclose classified information. An applicant is not made more or less suitable for a security clearance based on how a security clearance decision might affect the applicant or others. Applicant's over

Procedural History

R">Peregrine D. Russell-Hunter, Esq., Chief Department Counsel FOR APPLICANT Pro Se Administrative Judge Darlene Lokey Anderson issued a decision, dated June 13, 2002, in which she concluded it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant. Applicant appealed. This Board has jurisdiction on appeal under Executive Order 10865 and Department of Defense Directive 5220.6 (Directiv

Procedural Matters

e), dated January 2, 1992, as amended. Applicant's appeal presents the following issues: (1) whether the Administrative Judge ignored evidence submitted by Applicant or failed to give due weight to such evidence; and (2) whether the Administrative Judge erred by concluding Applicant's history of marijuana use demonstrated poor judgment, unreliability, and untrustworthiness that warranted an adverse security clearance decision. For the reasons that follow, the Board affirms the Administrative Judge's decision. <CENTER>Procedural History</ CENTER> The Defense Office of Hearings and Appeals issued to Applicant a Statement of Reasons (SOR) dated January 7, 2002. The SOR was based on Guideline H (Drug Involvement). A hearing was held on April 17, 2002. The Administrative Judge issued a decision, dated June 13, 2002, in which she 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>Scope of Review</CENTER> On appeal, the Board does not review a case de

Appeal Issues

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> 1. Whether the Administrative Judge ignored evidence submitted by Applicant or failed to give due weight to such evidence. On appeal, Applicant states the Administrative Judge's decision "does not contain a single reference to the evidence which I submitted as Exhibit E . . . [and] [t]herefore, one must conclude that she inadvertently ignored this information." There is a rebuttable presumption that an Administrative Judge considered all the record evidence unless the Judge specifically stated otherwise. See, e.g., ISCR Case No. 99-9020 (June 4, 2001) at p. 2. Furthermore, there is no legal requirement that a Judge specifically cite and discuss every piece of record evidence. See, e.g., ISCR Case No. 98-0809 (August 19, 1999) at p. 6. Accordingly, the absence of any discussion of Exhibit E in the Judge's decision is not enough to overcome the rebuttable presumption that the Judge considered all the record evidence. Applicant also cites Exhibit E and other record evidence to support his related contention that his contributions to defense programs show it is in the national interest to grant him a security clearance, and that the Administrative Judge failed to give that evidence due consideration in making her security clearance decision. Applicant's contention fails to demonstrate the Judge erred. Applicant's technical expertise and contribution to defense programs do not have the significance in these proceedings that Applicant places on them. The government must be able to repose a high degree of trust and confidence in persons granted access to classified information. Snepp v. United States, 444 U.S. 507, 511 n.6 (1980). Security requirements include consideration of an applicant's judgment, reliability, and trustworthiness. Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 284 F.2d 173, 183 (D.C. Cir. 1960), aff'd, 367 U.S. 887 (1961). An applicant's technical expertise (or lack thereof) is not a measure of whether the applicant demonstrates the high degree of judgment, reliability, and trustworthiness that must be possessed by persons entrusted with classified information. See, e.g., ISCR Case No. 99-9020 (June 4, 2001) at pp. 7-8. In deciding whether to g

Conclusion

poor judgment." Applicant points to his 25 months free of marijuana use and argues it is compelling evidence in his favor. However, the record evidence shows that Applicant has previously returned to marijuana use after