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

ISCR Case No. 02-17276

Appeal Board

Decided Mar 15, 2005 · Administrative Judge Jeffrey D. Billett · Appeal

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The appeal involved a review of an unfavorable security clearance decision based on allegations of drug use, alcohol consumption, criminal conduct, financial considerations, and personal conduct. The applicant argued that the Administrative Judge made several errors in characterizing his responses and evidence. The Board affirmed the Administrative Judge's decision, finding that the errors were harmless and that the decision was supported by substantial evidence.

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ion is sustainable on other grounds. Applicant has failed to demonstrate the Judge weighed the record evidence in a manner that is arbitrary, capricious, or contrary to law. Applicant has not shown the Judge misapplied pertinent provisions of the Adjudicative Guidelines. The Judge's finding of falsification is sustainable. Adverse decision affirmed.

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DATE: March 15, 2005

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In Re:

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

Applicant for Security Clearance

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ISCR Case No. 02-17276

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT

Jennifer Campbell, Esq., Department Counsel

FOR APPLICANT

Alan R. Jones, Esq.

The Defense Office of Hearings and Appeals (DOHA) issued to Applicant a Statement of Reasons (SOR), dated February 19, 2003, which

stated the reasons why DOHA proposed to deny or revoke access to classified information for Applicant. The SOR was based on Guideline G

(Alcohol Consumption), Guideline H (Drug Involvement), Guideline J (Criminal Conduct), Guideline F (Financial Considerations), and

Guideline E (Personal Conduct). Administrative Judge Barry M. Sax issued an unfavorable security clearance decision, dated October 21,

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 regarding his characterization of Applicant's

SOR response concerning drug use; (2) whether the Administrative Judge erred by downplaying the significance of Applicant's debt

repayment efforts and not considering them as evidence that he is generally rehabilitated; (3) whether the Administrative Judge's

characterization of Applicant's alcohol abuse was erroneous; (4) whether the Administrative Judge erred by concluding Applicant had not

presented evidence sufficient to extenuate or mitigate his conduct; and (5) whether the Administrative Judge erred by finding that Applicant

intentionally falsified answers on a security clearance application. 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 regarding his characterization of Applicant's SOR response concerning drug use. The

Administrative Judge concluded that Applicant's drug use, including his use of cocaine, was disqualifying under Guideline H (Drug

Involvement). In the "Conclusions" section of his decision, the Judge states that Applicant's explanations of his drug use in his response to

the SOR "are not helpful to his position." The Judge states that Applicant does not even mention his cocaine use in his SOR response and

Applicant's use of the term "relapse" suggests that even he does not claim he is cured of the drug use. On appeal, Applicant asserts that he

did mention cocaine use in his SOR response and that there is nothing in his SOR response that suggests he does not claim to be cured of drug

use.

A review of Applicant's SOR response and the overall record reveal that Applicant's claims regarding his SOR responses have merit.

Applicant clearly mentions cocaine use in his SOR response. He describes relapses in 1999 and 2001 involving prescription pain medications

related to surgery, but maintains that he is now rehabilitated and drug free. Based on these responses, the Administrative Judge's assertion

that Applicant failed to mention cocaine use is error, and his conclusion that Applicant himself does not believe he is cured of drug use has no

basis in the record. These erroneous characterizations about Applicant's responses to the SOR constitute a significant portion of the Judge's

rationale with respect to the Guideline H allegations. The problem is compounded by the Judge's further statement: "it is just as likely that

any lack of drug use over the past few years indicates a relapse. . ." The Board is puzzled by the Judge's use of the word "relapse" to describe

a period where Applicant did not use drugs, and is unclear as to the meaning of the statement. If there were no other allegations in the SOR

other than the Guideline H allegations, then remand to the Judge for purposes of correction and clarification would be appropriate. However,

because the Judge's ultimate adverse decision is sustainable on other grounds (Guidelines G, J, and E), remand to the Judge has no significant

chance of changing the outcome of the case, and is therefore unnecessary.

2. Whether the Administrative Judge erred by downplaying the significance of Applicant's debt repayment efforts and by not considering

them as evidence that he is generally rehabilitated. While acknowledging that the Administrative Judge found entirely in his favor with

regard to the SOR allegations dealing with his financial problems, Applicant alleges on appeal that the Administrative Judge downplayed his

debt repayment efforts. Applicant also asserts that the payment of financial obligations is clearly a consideration in connection with the

Judge's resolution of the issues involving his drug use, alcohol consumption, and criminal conduct under Guidelines G, H, J, and E. Applicant

argues that his success in retiring all his financial obligations in and of itself supports his testimony that he is rehabilitated in the context of

those Guidelines.

There is no presumption of error below and an appealing party must assert error with sufficient specificity to enable the Board to meaningfully

resolve the issue. The general statement that the Judge has "downplayed" the significance of certain evidence, without more, is insufficient

to overcome that presumption. Administrative Judges are charged with the task of weighing the evidence, both favorable and unfavorable,

when determining an applicant's security eligibility. A mere difference of opinion with the Judge's weighing of evidence does not establish

that the Judge's evaluation of the evidence was erroneous. In this case, while Applicant is clearly asserting that he would weigh the

mitigating evidence of debt retirement differently from the Judge, he has fa

Appearances

iled to establish that the Judge's weighing of the evidence was

arbitrary, capricious, or contrary to law. Moreover, while administrative judges are required to evaluate cases using a "whole person"

analysis, mitigating evidence applicable to one Guideline is not necessarily dispositive--or even applicable--to the resolution of other

Guidelines. Given the totality of the record evidence in this case, the Administrative Judge was not required as a matter of law to mitigate

Applicant's conduct under Guidelines G, H, J, an

Conclusion

t" (Directive, Adjudicative Guidelines, Item E2.A8.1.3.1).

<A NAME="N_6_">6. </A> "A demonstrated intent not to abuse any drugs in the future" (Directive, Adjudicative Guidelines, Item E2.A8.1.3.3).

<A NAME="N_7_">7. </A> "The criminal behavior was not recent" (Directive, Adjudicative Guidelines, Item E2.A10.1.3.1).

<A NAME="N_8_">8. </A> "There is clear evidence of successful rehabilitation" (Directive, Adjudicative Guidelines, Item E2.A10.1.3.6).

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