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ISCR Case No. 02-10502.a1

Appeal Board

Decided Apr 29, 2004 · Administrative Judge Michael Y. Ra'anan · Appeal

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The appeal involved a review of an unfavorable security clearance decision based on the applicant's falsification of a personnel security questionnaire and marijuana use. The applicant argued that the Administrative Judge erred in not mitigating these issues. The Board affirmed the decision, finding no harmful error in the Judge's conclusions.

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Appearances

of a personnel security questionnaire are sustainable. Adverse decision affirmed.

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DATE: April 29, 2004

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In Re:

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Appeal Board Decision

of a personnel security questionnaire are sustainable. Adverse decision affirmed.

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DATE: April 29, 2004

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In Re:

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SSN: -----------

Applicant for Security Clearance

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ISCR Case No. 02-10502

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT

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

FOR APPLICANT

Pro Se

The Defense Office of Hearings and Appeals (DOHA) issued to Applicant a Statement of Reasons (SOR) dated June 9, 2003 which stated the reasons why

DOHA proposed to deny or revoke access to classified information for Applicant. The SOR was based on Guideline H (Drug Involvement) and Guideline E

(Personal Conduct). The Applicant elected to have the case decided on the administrative record, as opposed to having a hearing. Consequently, the

government prepared a File of Relevant Material (FORM) to which Applicant made a response. Administrative Judge Joseph Testan issued an unfavorable

security clearance decision dated January 15, 2004.

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 concluding that Applicant's 1994 falsification of a personnel

security questionnaire had not been mitigated; (2) whether the Administrative Judge erred by concluding that Applicant's marijuana use had not been

mitigated; and (3) whether the Administrative Judge's decision was arbitrary, capricious, or contrary to law. 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</CENTER>

1. Whether the Administrative Judge erred by concluding that Applicant's 1994 falsification of a 1994 personnel security questionnaire had not been mitigated.

The Administrative Judge found, and Applicant concedes, that Applicant falsified a March 1994 personnel security questionnaire by denying he had ever used

illegal drugs when answering questions about prior illegal drug use. Applicant had in fact used marijuana occasionally for several years prior to completing the

questionnaire. The Administrative Judge indicated in his decision that he had considered the facts that the falsification was not recent and that it appeared to be

an isolated incident.<A HREF="#N_1_"> (1)</A> The Judge concluded, however, that these facts were insufficient to mitigate Applicant's dishonesty absent independent evidence in the

record indicating that he is now a reliable and trustworthy individual. The Judge also concluded that there was an absence of credible evidence that Applicant

voluntarily provided the correct information about his marijuana use to the Department of Defense subsequent to his 1994 falsification.

On appeal, Applicant asserts that he has met the criteria cited under the Personal Conduct mitigating conditions<A HREF="#N_2_"> (2)</A> since he corrected his incorrect answer about

drugs on his personnel security questionnaire "at the first possible chance in October 1994 when I interviewed with an agent." Applicant also asserts that his

falsification was an isolated incident that happened "a long time ago" and he subsequently provided correct information about his marijuana use during a 2001

reinvestigation. He does not believe "the court has good cause to find against me on the Guideline E charges."

Applicant has failed to establish error on the part of the Administrative Judge with regard to the latter's consideration of Personal Conduct Mitigating

Conditions E2.A5.1.3.2. and E2.A5.1.3.3.

Application of Personal Conduct Mitigating Condition E2.A5.1.3.3. in Applicant's favor requires that Applicant meet his burden of establishing that he made

prompt, good-

Appeal Issues

ted; (2) whether the Administrative Judge erred by concluding that Applicant's marijuana use had not been