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ISCR 18-01062.a1: Guideline E security clearance appeal (2019) · CASE

Case record

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

Decision Date8/13/2019
Statusunknown
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionsSee the hearing decision (Case 18-01062) →See the hearing decision (Case 18-01062) →
Participants
Applicant Representation: Pro Se
Judge: Michael Y. Ra'anan, James E. Moody, James F. Duffy
Government Counsel: James B. Norman
Guidelines Evaluated
- EPersonal Conduct · Against Applicant
- GAlcohol Consumption · Against Applicant
- HDrug Involvement & Substance Misuse · Against Applicant
- IPsychological Conditions · Against Applicant
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ISCR Case 18-01062.a1unknown

Case headnote

ISCR Case No. 18-01062.a1

Aug 13, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant, representing himself, who faced a security clearance denial under several guidelines: Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), Guideline H (Drug Involvement), and Guideline I (Psychological Conditions).

The appeal was remanded to address the applicant's concern that certain exhibits he submitted might not have been fully considered during the initial hearing. The purpose of the remand is to determine if any documents are missing from the record.

As of the current decision, no final outcome has been reached regarding the applicant's security clearance. The case is pending further review to ensure all submitted evidence is properly accounted for.

Conditions referenced

Disqualifying

Guideline EraisedPersonal Conduct
Guideline GraisedAlcohol Consumption
Guideline HraisedDrug Involvement and Substance Misuse
Guideline IraisedPsychological Conditions

Procedural posture

SOR issuedApr 30, 2018
Answer filed—
Hearing heldNov 29, 2018record left open until 2018-12-28 for additional submissions
Decision dateAug 13, 2019remanded for further review

Cite for

Remand for Missing Documents in Security Clearance Cases
Consideration of Submitted Exhibits in Whole-person Analysis
Due Process Issues in Security Clearance Hearings

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 security clearance based on concerns under multiple guidelines. The applicant argued that certain exhibits were not considered by the Judge. The Board remanded the case to determine if documents were missing from the record and to take appropriate action based on that determination.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowNichole L. Noel denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline GGuideline HGuideline I

What the Board reviewed

No specific harmful error alleged, raised by the applicantRejected
Applicant contended that certain exhibits were not considered by the Judge.

Why the Board ruled this way

The Board found that the applicant made a prima facie showing that exhibits may be missing from the record, necessitating a remand for further proceedings.

On remand, the judge must

The Judge should determine whether documents are missing from the record. If documents are missing, she should collect them, consider them, and issue a new decision. If no documents are missing, she should issue a new decision reporting the basis for that conclusion.

Standard of review applied

No de-novo re-decisionNo new evidence on appealProcedural compliance

Appeal Board panel

Michael Ra’anan (Chair)
James E. Moody
James F. Duffy

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 G; Guideline H; Guideline I DIGEST: Applicant has made a prima facie showing that exhibits may be missing from the record. We conclude the best resolution of this appeal is to remand the case to the Judge to determine whether documents are missing from the record. If the Judge concludes that documents are missing, she should collect them, consider them, and issue a new decision consistent with Directive ¶ E3.1.35. If the Judge determines that no documents are missing, she should issue a new decision in which she reports the basis for that conclusion. Applicant has raised other issues that are not ripe for consideration at this time. Adverse decision remanded. CASENO: 18-01062.a1 DATE: 08/13/2019 DATE: August 13, 2019 ) In Re: ) ) ) ------------------------- ) ISCR Case No. 18-01062 ) ) Applicant for Security Clearance ) )

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On April 30, 2018, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline I (Psychological Conditions), Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline H (Drug Involvement and Substance Misuse) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 13, 2019, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Nichole L. Noel denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant has raised a due process issue. At the hearing held on November 29, 2018, the Judge left the record open until December 28, 2018, for the parties to submit additional matters. Tr. at 81-82. In the decision, the Judge noted that Department Counsel submitted one additional exhibit and Applicant submitted four. In his appeal brief, Applicant contends the Judge did not mention that she considered certain of his exhibits in conducting her whole-person analysis. These exhibits included Applicant’s credit report, driving record, employment awards and information sheet, drug prescription information, military discharge certificates, and character references. He also stated that the Judge did not acknowledge receipt of four character reference letters that he submitted. He noted the character references included two letters from family members and two from coworkers. The record does not contain the character reference letters, but apparently contains the other exhibits that Applicant referenced. Applicant has made a prima facie showing that exhibits may be missing from the record. We conclude the best resolution of this appeal is to remand the case to the Judge to determine whether documents are missing from the record. If the Judge concludes that documents are missing, she should collect them, consider them, and issue a new decision consistent with Directive ¶ E3.1.35. If the Judge determines that no documents are missing, she should issue a new decision in which she reports the basis for that conclusion. Applicant has raised other issues that are not ripe for consideration at this time.

ORDER

The Decision is REMANDED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board