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ISCR Case No. 02-07757

Appeal Board

Decided Mar 29, 2004 · Administrative Judge Richard A. Cefola · Appeal

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The appeal involved a review of an unfavorable security clearance decision where the applicant was found to have falsified a security clearance application. The applicant argued that the Administrative Judge erred in this finding and in not recognizing sufficient favorable evidence. The Board affirmed the decision, finding no harmful error in the Judge's conclusions.

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Appearances

YWORD -->  <!-- Board cannot consider new evidence on appeal. Given the record evidence in this case, the Administrative Judge's finding that Applicant falsified

Appeal Issues

ement) and Guideline E

(Personal Conduct). Administrative Judge Richard A. Cefola issued an unfavorable security clearance decision dated December 29, 2003.

Applicant appealed the Administrative Judge's unfavorable decision. The Board has jurisdiction under Executive Order 10865 and Department of Defense

Directive 5220.6 (Directive), dated January 2, 1992, as amended.

The following issues have been raised on appeal: (1) whether the Administrative Judge erred by finding Applicant falsified a security clearance application; and

(2) whether the Administrative Judge should have concluded Applicant presented sufficient favorable evidence to warrant a favorable security clearance

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

1. Whether the Administrative Judge erred by finding Applicant falsified a security clearance application. When Applicant completed a security clearance

application in August 2000 he did not list a July 1995 arrest for driving while intoxicated and violating probation.<A HREF="#N_2_"> (2)</ A> The issue for the Administrative Judge to

decide was whether or not Applicant's omission of the July 1995 arrest from the security clearance application was deliberate and knowing.

The record evidence before the Administrative Judge contained Applicant's explanation for the omission and his denial of any intent to mislead or deceive the

federal government. Applicant's statements about his state of mind and intent when he completed the security clearance applicant were relevant and material

evidence that the Judge had to consider. However, Applicant's statements were not binding or conclusive on the Judge. The Judge had to consider Applicant's

statements in light of the record evidence as a whole and decide whether to accept Applicant's explanation for the omission, or reject it as not credible. See,

e.g., ISCR Case No.99-0194 (February 29, 2000) at p. 3.

Given the record evidence in this case, the Administrative Judge had a rational basis for his conclusion that Applicant's explanation for the omission was not

credible. Applicant's strong disagreement with the Judge's conclusion is not sufficient to demonstrate the Judge weighed the record evidence in a manner that

is arbitrary, capricious, or contrary to law, or that the Judge reached a conclusion that is unreasonable in light of the record evidence before him. See, e.g., ISCR

Case No. 02-29608 (December 17, 2003) at p. 4; ISCR Case No. 02-03414 (November 20, 2003) at p. 4.

2. Whether the Administrative Judge should have concluded Applicant presented sufficient favorable evidence to warrant a favorable security clearance

decision. The Administrative Judge entered a formal finding against Applicant with respect to SOR paragraph 2.a (which pertained to the July 1995

arrest)(Decision at p. 5). However, reading the Judge's decision in its entirety, the only reasons the Judge gave in support of his unfavorable security clearance

decision relate to Applicant's falsification of the security clearance application (SOR paragraph 2.b). The Board is unable to discern whether (a) the Judge's

unfavorable formal finding with respect to SOR paragraph 2.a is a typographical error, or (b) the Judge failed to make findings and reach conclusions with

respect to SOR paragraph 2.a as required by Directive, Additional Procedural Guidance, Item E3.1.25. In either event, the error is harmless under the particular

facts and circumstances of this case.

The Administrative Judge concluded that Applicant had not demonstrated his falsification of the security clearance application was mitigated, and entered a

formal finding against Applicant with respect to SOR paragraph 2.b. On appeal, Applicant makes some arguments that the Board construes as raising the issue

whether the Judge should have concluded Applicant presented sufficient favorable evidence to warrant a favorable security clearance decision.<A HREF="#N_3_"> (3)</A> Applicant's

appeal arguments can be construed as raising two separate questions: (a) whether the Administrative Judge failed to consider the evidence presented by

Applicant; and (b) whether the Judge failed to weigh the record evidence properly.<A HREF="#N_4_"> (4)</A> For the reasons that follow, the Board concludes Applicant has not shown

the Judge erred.

There is a rebuttable presumption that an Administrative Judge considered all the record evidence unless the Judge specifically states otherwise. See, e.g., ISCR

Case No. 99-9020 (June 4, 2001) at p. 2. An appealing party's disagreement with the Judge's findings and conclusions is not sufficient to rebut or overcome

the presumption that the Judge considered all the record evidence. Merely because the Judge did not give as much weight to the evidence presented by

Applicant as he would have liked, it does not follow that the Judge simply ignored that evidence. See, e.g., ISCR Case No. 02-15935 (October 15, 2003) at p. 6.

In this case, the Judge concluded that Applicant had presented sufficient evidence to mitigate his past drug use, but not sufficient evidence to mitigate his

falsification of the security clearance application. Such an analysis indicates the Judge did not just ignore the evidence presented by Applicant, but rather

considered and weighed that evidence in making his findings and reaching his conclusions.

In this case, Applicant disagrees with the Administrative Judge's weighing of the record evidence. However, mere disagreement with a Judge's weighing of the

record evidence is not sufficient to demonstrate error. The Board will not disturb a Judge's weighing of the record evidence unless the appealing party

demonstrates the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 02-06928 (September 17,

2003) at p. 4. Nothing in Applicant's appeal brief persuades the Board that the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary

to law.

<CENTER>Conclusion</CENTER>

The Board affirms the Administrative Judge's decision because Applicant has failed to demonstrate error below.

Signed: Emilio Jaksetic

Emilio Jaksetic

Administrative Judge

Chairman, Appeal Board

Signed: Jeffrey D. Billett

Jeffrey D. Billett

Administrative Judge

Member, Appeal Board

Signed: Michael D. Hipple

Michael D. Hipple

Administrative Judge

Member, Appeal Board

<A NAME="N_1_">1. </A> The Administrative Judge concluded that Applicant's past history of drug abuse was mitigated sufficiently to warrant favorable formal findings under

Guideline H (Drug Involvement). The Judge's favorable formal findings under Guideline H are not at issue on appeal.

<A NAME="N_2_">2. </A> At the time of the July 1995 arrest, Applicant was on probation for a 1992 drug conviction.

<A NAME="N_3_">3. </A> Applicant's a

Conclusion

Applicant's past history of drug abuse was mitigated sufficiently to warrant favorable formal findings under

Guideline H (Drug Involvement). The Judge's favorable formal findings under Guideline H are not at issue on appeal.

<A NAME="N_2_">2. </A> At the time of the July 1995 arrest, Applicant was on probation for a 1992 drug conviction.

<A NAME="N_3_">3. </A> Applicant's a