ISCR Case No. 02-26033.a1

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

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.

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