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ISCR Case No. 02-05665

Appeal Board

Decided May 7, 2003 · Administrative Judge Michael Y. Ra'anan · Appeal

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The applicant appealed the denial of her security clearance, arguing that the Administrative Judge erred in finding that she falsified a security clearance questionnaire. The Board found that the lack of specificity in the Statement of Reasons and the Judge's decision made it impossible to discern the findings and conclusions regarding the alleged falsification. The case was remanded for further processing.

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Appeal Board Decision

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Applicant for Security Clearance

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ISCR Case No. 02-05665

APPEAL BOARD DECISION AND REMAND ORDER

<SPA

Appearances

STYLE="text-decoration: underline">APPEARANCES

FOR GOVERNMENT

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

FOR APPLICANT

<

Procedural History

strative Judge erred by finding that Applicant falsified a security clearance questionnaire; and (3) whether the Board should

address Applicant's arguments concerning the Guideline F allegations. For the reasons that follow, the Board remands the case to the Administrative Judge for

further processing consistent with the rulings and instructions set forth in this Decision and Remand Order.

<CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued to Applicant a Statement of Reasons (SOR), dated April 1, 2002. The SOR was based on Guideline F

(Financial Considerations) and Guideline E (Personal Conduct). A hearing was held on August 8, 2002. The Administrative Judge issued a written decision, 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>Scope of Review</CENTER>

Appeal Board Summary Disposition

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 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 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'

Appeal Issues

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 Board should review Applicant's life during the last seven years, her awards, and her service record. Applicant asks the Board to review her life

during the last seven years, her awards, and her service record. As noted earlier in this decision, 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. The Board will not review the record evidence de novo

and make its own findings and reach its own conclusions about Applicant's security eligibility.

2. Whether the Administrative Judge erred by finding that Applicant falsified a security clearance questionnaire. On appeal, Applicant challenges the

Administrative Judge's finding that she falsified a security clearance questionnaire by not disclosing all of her delinquent debts. In support of that challenge,

Applicant argues: (a) it is not clear from the Statement of Reasons or the exhibits presented by Department Counsel which delinquent debts she is alleged to

have omitted or concealed when she completed the security clearance questionnaire; (b) she did not believe she was 90 days delinquent on any debts when she

completed the security clearance questionnaire; (c) the security clearance questionnaire did not indicate she should obtain a copy of her credit reports; (d) no

person told her to obtain a copy of her credit report to complete the security clearance questionnaire; (e) she made no attempt to conceal anything and cites her

openness on several issues and refers to the remarks section of the security clearance questionnaire; and (f) she told an investigator about her financial

situation.<A HREF="#N_1_"> (1)</A>

This appeal presents an unusual situation: a lack of specificity in the SOR, the nature of the evidence presented by Department Counsel, and somewhat

problematic language in the Administrative Judge's decision, taken together, leave the Board unable to discern the Judge's findings, conclusions, and reasoning

about Applicant's alleged falsification of the security clearance questionnaire sufficiently to resolve the merits of Applicant's appeal.

Applicant correctly notes that it is not clear from the SOR which delinquent debts she is alleged to have omitted or concealed when she completed the security

clearance questionnaire (as alleged in SOR subparagraph 2.a. An SOR must "be as comprehensive and detailed as the national security permits." Executive

Order 10865, Section 3; Directive, Additional Procedural Guidance, Item E3.1.3. The Board has held that the sufficiency of SORs should be reviewed under

the somewhat relaxed standards applied to administrative pleadings. See, e.g., ISCR Case No. 99-0710 (March 19, 2001) at p. 2. However, even under the

somewhat relaxed standard applied to administrative pleadings, an SOR must place an applicant on reasonable notice of what he or she is being accused of

doing or not doing so that the applicant can respond to the allegation(s) and present evidence on his or her behalf. Apart from providing notice to an applicant,

an SOR provides an important benchmark against which the Board can evaluate the sufficiency of a Judge's findings and conclusions when they are pertinent

to appeal issues.<A HREF="#N_2_"> (2)</A> In this case, SOR subparagraph 2.a did not identify which delinquent debts Applicant is alleged to have concealed or tried to conceal from

the government when she completed the security clearance questionnaire. The identity of those delinquent debts is critical because: (i) SOR subparagraph 2.a

alleges that Applicant falsified her answer to question 39 on the security clearance questionnaire; and (ii) given the wording of question 39, the identity of

which delinquent debts Applicant did or did not disclose on the security clearance questionnaire is important to a finding of falsification (or no falsification).

Applicant correctly notes that during the hearing Department Counsel did not present evidence that specifically identifies which delinquent debts were the basis

of the falsification allegation (SOR subparagraph 2.a). Clearly, an applicant cannot dictate to Department Counsel what evidence it can or should present in

support of its case against the applicant. However, Department Counsel bears the burden of presenting evidence to prove controverted allegations. See

Directive, Additional Procedural Guidance Item E3.1.14.<A HREF="#N_3_"> (3)</A> Because the wording of SOR subparagraph 2.a is somewhat problematic, the nature of the evidence

presented by Department Counsel in this case<A HREF="#N_4_"> (4)</A> adds to the difficulty in discerning whether there is sufficient record evidence for the Board to conclude whether

the Judge made a rational decision as to whether or not Department Counsel me

Conclusion

its burden of proof under Directive, Additional Procedural Guidance, Item

E3.1.14.<A HREF="#N_5_"> (5)</A>

An Administrative Judge has broad discretion in writing a security clearance decision. Furthermore, a Judge's decision is not reviewed against a standard of

perfection. However, the Judge's decision must be written in a manner that allows the parties and the Board to discern what findings the Judge is making and

what conclusions the Judge is reaching. See, e.g., ISCR Case No. 98-0809 (August 19, 1999) at p. 2. Given the lack of specificity in the wording of SOR

subparagraph 2.a, the nature of the evidence presented by Department Counsel, and the wording of the Judge's decision, it is not clear what delinquent debts the

Judge found Applicant omitted from the security clearance questionnaire. The Board's dilemma is compounded by the fact that the Judge's decision at page 9,

paragraph 3 appears to be internally inconsistent as to what the Judge is or is not finding or concluding about Applicant's intent or state of mind when she

completed the security clearance questionnaire.</