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

ISCR Case No. 02-07191

Appeal Board

Decided Mar 25, 2004 · Administrative Judge Michael Y. Ra'anan · Appeal

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The appeal involved a challenge to an unfavorable security clearance decision based on claims of inadequate background investigation and failure to consider record evidence. The Board found merit in the claim regarding the misidentification of the Applicant, leading to a remand for a new decision.

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Appearances

APPEAL BOARD DECISION AND REMAND ORDER

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Appeal Board Decision

Applicant for Security Clearance

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ISCR Case No. 02-07191

Appeal Issues

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 an inadequate background investigation was conducted in Applicant's case. On appeal, Applicant questions the adequacy of the background

investigation conducted in his case. The Board construes Applicant's brief as raising the issue of whether an inadequate background investigation was

conducted in his case.

Under the Directive, there is no jurisdiction or authority to adjudicate, in DOHA proceedings, the adequacy of a background investigation. See, e.g., ISCR Case

No. 01-03112 (March 20, 2002) at p. 3. Accordingly, Applicant's expressed concern about the adequacy of the background investigation in his case raises a

claim that cannot be addressed by the Board. By holding there is no jurisdiction or authority to address this claim, the Board does not express or imply any

opinion about the adequacy of the background investigation in Applicant's case.

2. Whether the Administrative Judge failed to consider the record evidence. Applicant correctly notes that, in the decision below, the Administrative Judge

misidentifies Applicant as a 26-year-old female. The Board construes Applicant's brief as questioning whether the Judge considered the record evidence in his

case. For the reasons the follow, the Board concludes Applicant's claim has merit.

The File of Relevant Material (FORM) prepared by Department Counsel contains two parts: documentary evidence (consisting of seven documents) and

Department Counsel's discussion and argument about the documentary evidence.<A HREF="#N_1_"> (

Conclusion

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In the discussion and argument portion of the FORM, Department Counsel

states Applicant is a 26-year-old female and repeatedly refers to Applicant as a female (by using the pronouns "she" and "her"). However, the record evidence

shows Applicant is a man who was 30 years old as of the date of the FORM, and 31 years old when the Adminis