DATE: July 14, 2005

-------------------

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 21, 2004, 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). Administrative Judge Richard A. Cefola issued an unfavorable security clearance decision, dated February 10, 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 it was arbitrary, capricious, or contrary to law for the Administrative Judge to not conclude Applicant's falsification was mitigated under Personal Conduct Mitigating Condition 2. 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 it was arbitrary, capricious, or contrary to law for the Administrative Judge to not conclude Applicant's falsification was mitigated under Personal Conduct Mitigating Condition 2. Applicant does not challenge the Administrative Judge's finding that he falsified a security clearance application by not disclosing his history of drug use. However, Applicant does contend that the Judge should have concluded his falsification was mitigated by application of Personal Conduct Mitigating Condition 2. ⁽²⁾

Applicant's appeal brief contains factual assertions about the facts and circumstances surrounding his interview by an investigator in March 2004 that go beyond the record evidence that was before the Administrative Judge. Such factual assertions constitute new evidence, which the Board cannot consider on appeal. See Directive, Additional Procedural Guidance, Item E3.1.29. Applicant waived his right to a hearing when he responded to the SOR. Moreover, Applicant had the opportunity to respond to the File of Relevant Material and offer additional evidence for the Judge to consider in his case. Indeed, Applicant took advantage of that opportunity and responded to the File of Relevant Material. Applicant cannot fairly challenge the Judge's decision based on a proffer of new evidence on appeal.

Given the record evidence that was available to the Administrative Judge, it was not arbitrary or capricious for the Judge to find that Applicant did not disclose his history of drug abuse to the federal government until after his employer notified the Defense Security Service that Applicant had tested positive for marijuana in a random drug test administered in September 2002. The Judge's finding reflects a legally permissible interpretation of the record evidence before him. Given that finding, the Judge was not compelled, as a matter of law, to conclude that Applicant's disclosures to the investigator were voluntarily made within the meaning of Personal Conduct Mitigating Condition 2. Accordingly, Applicant's claim of error is not persuasive.

There is no presumption of error below. Apart from offering new evidence, which the Board cannot consider, Applicant's only claim of error fails to demonstrate the Administrative Judge erred. Accordingly, the Board affirms the Judge's unfavorable security clearance decision.

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. The Administrative Judge's findings and conclusions under Guideline H (Drug Involvement) are not at issue on appeal.

2. "The falsification was an isolated incident, was not recent, and the individual has subsequently provided correct information voluntarily" (Directive, Adjudicative Guidelines, Item E2.A5.1.3.2).