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ISCR Case No. 02-06396

Appeal Board

Decided Aug 13, 2003 · Administrative Judge Jean E. Smallin · Appeal

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Appearances

rd to review an Administrative Judge's recommendation whether or not a waiver under 10 U.S.C. 986 should be considered. Under the Operating Instruction, the Board is asked to makes its own recommendation concerning a waiver under 10 U.S.C. 986, but directed to not give reasons or an explanation for its recommendation. Adverse decision affirmed. B

Procedural History

STYLE="text-decoration: underline">APPEARANCES

FOR GOVERNMENT

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

<STRON

Analysis

>FOR APPLICANT

Joe C. Ashworth, Esq.

Applicant has appealed the April 28, 2003 decision of Administrative Judge Robert Robinson Gales, in which the Judge concluded it is not clearly consistent

with the national interest to grant or continue a security clearance for Applicant.

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 following issues: (1) whether the Administrative Judge erred by not recommending Applicant's case be further considered for a

waiver under 10 U.S.C. §986(d); and (2) whether the Board should recommend Applicant's case be further considered for a waiver under 10 U.S.C. §986(d).

For the reasons that follow, the Board affirms the Administrative Judge's adverse security clearance decision, and does not recommend this case be further

Appeal Issues

considered for a waiver under 10 U.S.C. §986.

<CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued to Applicant a Statement of Reasons (SOR) dated November 14, 2002. The SOR was based on Guideline J

(Criminal Conduct). A hearing was held on March 19, 2003. The Administrative Judge issued an adverse security clearance decision, dated April 28, 2003.

Applicant appealed the Judge's adverse 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 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'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 erred by not recommending Applicant's case be further considered for a waiver under 10 U.S.C. §986(d). The

Administrative Judge made findings of fact about Applicant being arrested and charged in 1985 in connection with his cultivation of marijuana plants,

Applicant's conviction in May 1986 on charges arising from his cultivation of marijuana plants, and the reduction of Applicant's original sentence in August

1986. The Judge concluded Applicant was ineligible for a security clearance under 10 U.S.C. §986 because: (a) Applicant was sentenced in 1986 to a term of

imprisonment in excess of one year; and (b) the suspension of the remainder of Applicant's five-year term of imprisonment after he served only three months of

incarceration did not take Applicant's case outside the scope of 10 U.S.C. §986.

On appeal, Applicant does not challenge the Administrative Judge's findings of fact about his cultivation of marijuana plants. Nor does Applicant challenge the

Judge's conclusion that Applicant's 1986 conviction falls under 10 U.S.C. §986. Rather, Applicant contends the Judge's decision to not recommend a waiver

under that statute is clearly erroneous and not supported by the record evidence. In support of that contention, Applicant argues the Judge's decision to not

recommend a waiver is: (a) inconsistent with the Judge's own conclusions about Applicant's conduct and rehabilitation; (b) inconsistent with the Judge's

decision in another case under 10 U.S.C. §986; and (c) not consistent with the waiver recommendations made by other Hearing Office Judges.

Under 10 U.S.C. §986, the Department of Defense may not grant or renew a security clearance for a defense contractor official or employee that falls under any

of four statutory categories [10 U.S.C. §986(c)(1) through (c)(4)]. However, pursuant to 10 U.S.C. §986(d), the Secretary of Defense or the Secretary of the

military department concerned may authorize an exception to the statutory prohibition against granting or renewing a security clearance for cases co

Conclusion

ered by 10

U.S.C. §986(c)(1) or 10 U.S.C. §986(c)(4).

In a June 7, 2001 memorandum implementing the provisions of 10 U.S.C. §986, the Deputy Secretary of Defense indicated: "The decision as to whether a

particular case involves a meritorious case that would justify pursuing a request for waiver shall be the province of the DoD Component concerned (i.e. all

Components authorized to grant, deny or revoke access to classified information) beginning with the Director of the Component Central Adjudication Facility

(CAF), the Component appellate authority or other appropriate senior Component official." For purposes of the June 7, 2001 memorandum, the Director,

DOHA is the Director of the Component Central Adjudication Facility for industrial security clearance cases.

To implement the June 7, 2001 memorandum, the Director, DOHA issued an operating instruct