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ISCR Case No. 02-01624

Appeal Board

Decided Nov 23, 2004 · Administrative Judge Jeffrey D. Billett · Appeal

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The appeal involved a review of an unfavorable security clearance decision based on financial difficulties and personal conduct. The applicant argued that the Administrative Judge erred in not finding mitigation for her financial issues and that the decision regarding personal conduct was arbitrary. The Board affirmed the Administrative Judge's decision, finding no harmful error in the conclusions reached.

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DATE: November 23, 2004

<HR>

In Re:

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

Applicant for Security Clearance

<HR>

ISCR Case No. 02-01624

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT

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

FOR APPLICANT

Nancy Shaw, Esq.

The Defense Office of Hearings and Appeals (DOHA) issued the Applicant a Statement of Reasons (SOR), dated August 7, 2003, which stated the

reasons why DOHA proposed to deny or revoke Applicant's access to classified information. The SOR was based upon Guideline F (Financial

Considerations) and Guideline E (Personal Conduct). Administrative Judge Barry M. Sax issued an unfavorable security clearance decision, dated July

30, 2004.

Applicant appealed the Administrative Judge's unfavorable decision. The 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 concluding Applicant's history of financial difficulties

was not extenuated or mitigated, and (2) whether the Administrative Judge's decision with respect to the personal conduct allegations is arbitrary,

capricious, or contrary to law. For the reasons that follow, the Board affirms the Administrative Judge's 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. Directive, Additional Procedural Guidance, Item E3.1.32. See also ISCR Case No.

00-0050 (July 23, 2001) at pp. 2-3 (discussing reasons why party must raise claims of error with specificity).

When the rulings or conclusions of an Administrative Judge are challenged, the Board must consider whether they are: (1) arbitrary or capricious; or

(2) contrary to law. Directive, Additional Procedural Guidance, Item E3.1.32.3. In deciding whether the Judge's rulings or conclusions are arbitrary

or capricious, the Board will review the Judge's decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory

explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it

reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the

record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion. See, e.g., ISCR Case No. 97-0435 (July 14, 1998)

at p. 3 (citing Supreme Court decision). In deciding whether the Judge's rulings or conclusions are contrary to law, the Board will consider whether

they are contrary to provisions of Executive Order 10865, the Directive, or other applicable federal law. Compliance with state or local law is not

required because security clearance adjudications are conducted by the Department of Defense pursuant to federal law. See U.S. Constitution, Article

VI, clause 2 (Supremacy Clause). See, e.g., ISCR Case No. 00-0423 (June 8, 2001) at p. 3 (citing Supreme Court decisions).

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 the

same record. 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, and whether the Judge's findings reflect

a reasonable interpretation of the record evidence as a whole. Although a Judge's credibility determination is not immune from review, the party

challenging a Judge's credibility determination has a heavy burden on appeal.

When an appeal issue 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).

If an appealing party demonstrates factual or legal error, then the Board must consider the following questions:

Is the error harmful or harmless? See, e.g., ISCR Case No. 00-0250 (July 11, 2001) at p. 6 (discussing harmless error doctrine);

Has the nonappealing party made a persuasive argument for how the Administrative Judge's decision can be affirmed on alternate grounds? See, e.g.,

ISCR Case No. 99-0454 (October 17, 2000) at p. 6 (citing federal cases); and

If the Administrative Judge's decision cannot be affirmed, should the case be reversed or remanded? (Directive, Additional Procedural Guidance,

Items E3.1.33.2 and E3.1.33.3).

<CENTER>Appeal Issues</CENTER>

1. Whether the Administrative Judge erred by concluding Applicant's history of financial difficulties was not extenuated or mitigated. Applicant

contends the Judge should have concluded that the security concerns raised by her substantial indebtedness were mitigated by application of Financial

Considerations Mitigating Conditions 1,<A HREF="#N_1_"> (1)</A> 4,<A HREF="#N_2_"> (2)</A> and 6.<A HREF="#N_3_"> (3)</A> In support of that contention she

Appearances

/P>

<HR>

In Re:

-------------------

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

Applicant for Security Clearance

<HR>

ISCR Case No. 02-01624

APPEAL BOARD DECIS

Appeal Board Summary Disposition

TYLE="font-size: 11pt">FOR GOVERNMENT