DATE: October 13, 2004
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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 December 8, 2003, which stated the reasons why DOHA proposed to deny or revoke access to classified information for Applicant. The SOR was based on Guideline F (Financial Considerations). Administrative Judge Leroy F. Foreman issued an unfavorable security clearance decision, dated August 4, 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 issue has been raised on appeal: whether the Administrative Judge should have given Applicant a second chance to rectify his financial mistakes and continue to contribute to the national defense. 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 should have given Applicant a second chance to rectify his financial mistakes and continue to contribute to the national defense. Applicant does not challenge the Administrative Judge's findings of fact about his history of financial difficulties. However, Applicant points to his training and experience, asserts that he can contribute to the national defense, and asks that he be given a second chance to correct his past mistakes and be allowed to continue to contribute to the national defense.
As noted earlier in this decision, there is no presumption of error below and the appealing party has the burden of demonstrating factual or legal error. Because Applicant does not raise any claim of error concerning the Administrative Judge's findings of fact about his history of financial difficulties, the Judge's findings of fact need not be reviewed by the Board. Because Applicant does not challenge the Judge's analysis of Applicant's history of financial difficulties, the Judge's rulings and conclusions about Applicant's case under Guideline F need not be reviewed by the Board.
The Board construes Applicant's brief as requesting a conditional or probationary security clearance to allow him the opportunity to have a security clearance while he works on his financial problems. Under the Directive, there is no authority for a Hearing Office Administrative Judge or the Board to grant a conditional or probationary security clearance. See, e.g., ISCR Case No. 02-20110 (June 3, 2004) at p. 7.
Applicant correctly notes that, during the processing of his case by DOHA, some documents incorrectly list his middle name as his first name and his first name as his middle name. However, there is no indication in the case file that Applicant suffered any legally cognizable prejudice as a result of those errors concerning his name, or that the Administrative Judge's decision was affected in any way by those errors.
The Board affirms the Administrative Judge's unfavorable decision because Applicant has not demonstrated harmful error below, and seeks relief that is not authorized under the Directive.
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
1. Applicant's appeal brief contains factual assertions about what he did about notifying his company after he received the Administrative Judge's unfavorable decision. Those assertions constitute new evidence, which the Board cannot consider. See Directive, Additional Procedural Guidance, Item E3.1.29.