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

ISCR Case No. 02-09571

Appeal Board

Decided Aug 5, 2003 · Administrative Judge Michael Y. Ra'anan · Appeal

Reading

Workbench

Appeal at a glance

The appeal involved a review of an adverse security clearance decision made by Administrative Judge Philip S. Howe, which concluded that granting a security clearance to the applicant was not consistent with national interest due to marijuana use and falsification of a security clearance application. The Board affirmed the decision, finding no harmful errors in the Judge's findings.

Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.

Full decision

Open original PDF

The complete official text, footnotes and signatures included, is in the original PDF.

Decision text, by section

Appeal Board Decision

TYLE="text-align: CENTER">FOR GOVERNMENT

Peregrine D. Russell-Hunter, E

Appearances

sq., Chief Department Counsel

FOR APPLICANT

Pro Se</E

Procedural History

e than one occasion;

(2) whether the Administrative Judge erred by finding that Applicant falsified a security clearance application by denying any drug use; and (3) whether the

Administrative Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law. For the reasons that follow, the Board affirms the

Administrative Judge's decision.

<CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued to Applicant a Statement of Reasons (SOR) dated October 22, 2002. The SOR was based on Guideline H

(Drug Involvem

Appeal Board Summary Disposition

ent), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct).

Applicant submitted an answer to the SOR, in which she stated she did not wish to have a hearing. A File of Relevant Material (FORM) was prepared. A copy

of the FORM was given to Applicant. No response to the FORM was received from Applicant. The case was then assigned to the Administrative Judge for

determination.

The Administrative Judge issued a written decision, dated May 12, 2003, 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 Administrative Judge's adverse security clearance 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

Appeal Issues

.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>

Applicant's appeal brief contains factual assertions that go beyond the record evidence in this case. The Board cannot consider new evidence on appeal. See

Directive, Additional Procedural Guidance, Item E3.1.29. Furthermore, Applicant had the opportunity to respond to the FORM and provide information for

consideration by the Administrative Judge in her case. Applicant did not take advantage of that opportunity. Applicant cannot fairly challenge the Judge's

decision based on a proffer of information that she did not submit for the Judge's consideration.

1. Whether the Administrative Judge erred by finding Applicant used marijuana on more than one occasion. The Administrative Judge found that Applicant

used marijuana on two occasions before she completed a security clearance application in July 1999. On appeal, Applicant challenges that finding, arguing that

she used marijuana only once. There is conflicting record evidence as to whether Applicant used marijuana once or twice. The Judge is responsible for

considering the record evidence as a whole and making findings of fact. See Directive, Additional Procedural Guidance, Item E3.1.25. The Board will not

disturb a Judge's findings of fact if they reflect a reasonable interpretation of the evidence as a whole. Given the record evidence in this case, the Judge's

finding that Applicant used marijuana twice is sustainable. See Directive, Additional Procedural Guidance, Item E3.1.32.1.

Furthermore, even if the Board were to accept Applicant's argument about using marijuana only once, it would not demonstrate harmful error by the

Administrative Judge. The Judge entered a favorable formal finding with respect to Guideline H (Drug Involvement). Given that favorable formal finding, the

Judge's finding about the number of times Applicant used marijuana did not prejudice Applicant in any meaningful way.<A HREF="#N_1_"> (1)</A>

2. Whether the Administrative Judge erred by finding that Applicant falsified a security clearance application by denying any drug use. The Administrative

Judge found that Applicant falsified a security clearance application she completed in July 1999 by denying any illegal drug use. Making allowances for

Applicant's pro se status, the Board construes her argument that she has disclosed her marijuana use to the government as raising a challenge to the Judge's

finding of falsification.

When responding to the SOR, Applicant denied that she falsified the security clearance application. That denial was not binding or conclusive on the

Administrative Judge. Rather, the Judge had to consider Applicant's denial in light of the record evidence as a whole. A finding of falsification can be made

even in the face of an applicant's denial of any intent to falsify. See, e.g., ISCR Case No. 98-0583 (November 18, 1999) at p. 3. Considering the record as a

whole, the Judge's finding of falsification is sustainable. See Directive, Additional Procedural Guidance, Item E3.1.32.1.

3. Whether the Administrative Judge's adverse security clearance decision is a

Conclusion

e in persons granted access to classified information. A finding of

falsification provides a rational basis for an adverse security clearance decision. See Harrison v. McNamara, 228 F.Supp. 406, 408 (D. Conn. 1964)(lying on an

application for a government position requiring a security clearance is sufficient to warrant dismissal), aff'd per curiam, 380 U.S. 261 (1965).

<CENTER>Conclusion</CENTER>

Applicant has failed to demonstrate error below. Accordingly, the Board affirms the Administrative Judge's adverse security clearance decision.

Signed: Emilio Jaksetic