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

ISCR Case No. 03-11231.a1

Appeal Board

Decided Jun 4, 2004 · Administrative Judge Michael Y. Ra'anan · Appeal

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The appeal involved a security clearance denial based on the applicant's criminal conduct, drug involvement, personal conduct, and alcohol consumption. The applicant challenged the Administrative Judge's findings and the consideration of off-duty conduct. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

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Appearances

APPEARANCES

FOR GOVERNMENT

Nygina T. Mills, Esq., Department Counsel</ SPAN

Appeal Issues

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's findings of fact are sustainable. Applicant challenges the Administrative Judge's finding that Applicant last was involved with

Conclusion

cocaine in November 2001. The Board concludes that the Administrative Judge's finding is based on substantial record evidence, namely Applicant's November 2001

arrest for cocaine possession. Applicant's argument is unpersuasive.

2. Whe