DATE: January 24, 2006
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SSN: -----------
Applicant for Security Clearance
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 July 22, 2003, which stated the reasons why DOHA proposed to deny or revoke access to classified information for Applicant. The SOR was based on Guideline J (Criminal Conduct) and Guideline E (Personal Conduct). Administrative Judge Michael H. Leonard issued an unfavorable security clearance decision, dated August 23, 2005.
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 issue has been raised on appeal: Whether the Administrative Judge's unfavorable decision lacks a rational basis because there is no evidence that Applicant has engaged in misconduct on the job or committed a security violation. For the reasons that follow, the Board affirms the Administrative Judge's decision.
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).
Whether the Administrative Judge's unfavorable decision lacks a rational basis because there is no evidence that Applicant has engaged in misconduct on the job or committed a security violation. On appeal, Applicant does not challenge the Administrative Judge's findings of fact about his history of criminal conduct -- which included convictions for manslaughter (1962), criminal trespass to land (1986), and battery (1999), as well as arrests for battery in 1982, 1987 and 1988 that resulted in dismissals of the charges on grounds not constituting an adjudication of the charges on the merits. Nor does Applicant challenge the Judge's finding that he falsified a security clearance application in 2002 by failing to disclose his 1998 arrest that resulted in a conviction in 1999. The Judge entered formal findings against Applicant under Guideline J (Criminal Conduct) and Guideline E (Personal Conduct) and concluded it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant.
Because there is no presumption of error below, the Administrative Judge's unchallenged findings of fact stand on appeal, and need not be reviewed by the Board.
Applicant does argue on appeal that he has handled and delivered military loads for 11 years without incident, and without any failure of performance on his part. Applicant also asserts he would not do anything to harm the United States. Making allowances for Applicant's pro se status, the Board construes Applicant's brief as raising the issue of whether the Administrative Judge's unfavorable security clearance decision lacks a rational basis because there is no evidence that Applicant has engaged in misconduct on the job or committed a security violation. For the reasons that follow, the Board concludes Applicant has not demonstrated the Judge erred.
There is no right to a security clearance. Department of Navy v. Egan, 484 U.S. 518, 528 (1988). Nor is there a presumption in favor of granting or continuing a security clearance. Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). The federal government must be able to repose a high degree of trust and confidence in persons granted a security clearance. Snepp v. United States, 444 U.S. 507, 511 n.6 (1980). See also Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 284 F.2d 173, 183 (D.C. Cir. 1960)(security requirements include consideration of a person's discretion, honesty, judgment, sobriety, and high sense of his or her obligations), aff'd, 367 U.S. 886 (1961). The federal government is not required to wait until an applicant commits a security violation before it can deny or revoke access to classified information. Adams v. Laird, 420 F.2d 230, 238-239 (D.C. Cir. 1969), cert. denied, 397 U.S. 1039 (1970). Furthermore, the federal government is not limited to evaluating an applicant's security eligibility in terms of the applicant's job performance or on-duty conduct. An applicant's off-duty conduct can be considered when it has a rational bearing on evaluating the applicant's judgment, reliability, and trustworthiness. See, e.g., ISCR Case No. 01-26723 (November 30, 2004) at p. 3.
In this case, the Administrative Judge's unchallenged findings of fact about Applicant's history of criminal conduct and falsification of a security clearance application provide a legally permissible basis for his adverse conclusions about Applicant's security eligibility. Applicant's history of criminal conduct and falsification of a security clearance application provide a rational basis for the Judge's unfavorable security clearance decision.
The Board affirms the Administrative Judge's decision because Applicant has not demonstrated 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: Jean E. Smallin
Jean E. Smallin
Administrative Judge
Member, Appeal Board