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ISCR Case 02-26033.a1 — CASE

Case record

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

Decision Date11/17/2008
Statusunknown
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionsSee the appeal decision (Case 02-26033.a2) →See the hearing decision (Case 02-26033.h2) →See the hearing decision (Case 02-26033.h1) →
Participants
Judge: Jeffrey D. Billett, Michael Y. Ra'anan, James E. Moody
Government Counsel: Jeff A. Nagel
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline JCriminal Conduct · Against Applicant

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ISCR Case 02-26033.a1unknown

Case Headnote

ISCR Case No. 02-26033.a1

Nov 17, 2008· Hon. Jeffrey D. Billett· appeal

Summary

This security clearance case involved an applicant, represented by counsel, facing issues under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The Statement of Reasons (SOR) was issued before September 1, 2006.

The appeal board determined that the judge made an error by applying the current Adjudicative Guidelines, which were not in effect when the SOR was issued. Consequently, the board remanded the case for further proceedings to ensure the correct guidelines were applied.

As a result of this procedural error and subsequent remand, no final security clearance outcome has yet been reached in this matter.

Conditions Referenced

Disqualifying

EraisedPersonal Conduct
JraisedCriminal Conduct

Key Rule Quoted

“The revised Guidelines apply to all adjudications and other determinations in which a Statement of Reasons has not been issued by September 1, 2006.”

Procedural Posture

SOR issuedAug 31, 2006
Answer filed—
Hearing heldJul 24, 2008
Decision dateNov 17, 2008remanded for further proceedings

Cite For

Error in Applying Adjudicative Guidelines Based on SOR Issuance Date
Remand for Further Proceedings Due to Guideline Application Error
Consideration of Mitigating Conditions Under Prior Guidelines

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Remanded

The appeal involved a denial of a security clearance based on concerns under Guideline E and Guideline J. The Board found that the Administrative Judge erred in applying the current Adjudicative Guidelines instead of those in effect at the time the Statement of Reasons was issued. The case was remanded for reevaluation under the correct guidelines.

Appealed bythe applicant

Applicant representationAttorney

Judge belowDarlene Lokey-Anderson — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantError sustained
The Judge erred in applying the current Adjudicative Guidelines instead of those in effect at the time the SOR was issued.

Why the Board ruled this way

The Board found that the Judge applied the incorrect Adjudicative Guidelines, which warranted a remand for further proceedings.

No rational connection between facts and conclusion

On remand, the judge must

The Judge must reevaluate the case under the Adjudicative Guidelines in effect at the time the SOR was issued.

Standard of review applied

Harmful-error gatekeeperProcedural compliance

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
James E. Moody

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline E; Guideline J DIGEST: The Judge erred in applying the current Adjudicative Guidelines, in light of the fact that Applicant’s SOR was issued prior to September 1, 2006. Adverse decision remanded. CASENO: 02-26033.a1 DATE: 11/17/2008 DATE: November 17, 2008 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 02-26033

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Jeff A. Nagel, Esq., Department Counsel FOR APPLICANT Virginia M. Gomez, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 31, 2006, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On July 24, 2008, after the hearing, Administrative Judge Darlene Lokey-Anderson denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge erred in admitting post- “The revised Guidelines apply to all adjudications and other determinations in which a Statement of Reasons has not been issued by September 1, 2006. All adjudications and other determinations in which a Statement of Reasons has been issued prior to September 1, 2006, will be made under the current Guidelines.” The Government’s reply brief does not cite provisions of the Adjudicative Guidelines or otherwise discuss this issue. hearing documents submitted by the government; whether the Judge erred in concluding that Applicant intentionally falsified her security clearance application (SCA); whether the Judge’s credibility determination is erroneous; and whether the Judge’s conclusion that Applicant had failed to mitigate the security concerns in her case is erroneous. Finding error, we remand the case to the Judge. In addressing whether the Judge properly evaluated the applicable mitigating conditions, we note that DOHA issued Applicant’s SOR prior to September 1, 2006. As a consequence, it appears that the case should have been decided under the Adjudicative Guidelines in effect at that time. See USD(I) Memorandum, Implementation of Adjudicative Guidelines, dated August 30, 2006. However, the Judge’s decision and Applicant’s brief both improperly cite the Adjudicative Guidelines which apply to SORs issued on or after September 1, 2006. Therefore, we conclude that the best resolution is to remand the case to the Judge for further proceedings consistent with the Directive. The other issues raised by Applicant on appeal are not ripe for consideration.

ORDER

The Judge’s decision denying Applicant a security clearance is REMANDED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board