A decided public DOHA case, shown for research, not advice or a prediction.
ISCR Case No. 19-03083.a1
Appeal BoardDecided Sep 30, 2020 · Administrative Judge Michael Y. Ra'anan · Appeal
Case headnote
Summary
The applicant, representing himself, sought a security clearance but was denied based on concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The appeal board affirmed the denial, noting the applicant did not demonstrate any harmful error by the judge and had declined a hearing option that would not have required travel. The board concluded that the original decision was sustainable.
Why the applicant was denied
- The applicant did not demonstrate any harmful error by the judge.
- The applicant's appeal did not assert any legal or factual error affecting his right to present evidence.
- The applicant declined the option for a hearing, which would not have involved travel costs.
Conditions referenced
Disqualifying
- G.2.a Alcohol-related offensesraised
- J.1 Criminal conductraised
Key rule quoted
“Absent a showing of factual or legal error that affects a party’s right to present evidence in the proceeding below, a party does not have the right to have a second chance at presenting his or her case before an administrative judge.”
Procedural posture
- SOR issued
- 2019-12-11
- Answer filed
- Hearing held
- Applicant requested a decision on the written record.
- Decision date
- 2020-09-30
Cite for
- Affirmation of Denial Based on Alcohol Consumption and Criminal Conduct Under Guidelines G and J
- Limitations on Appeal Board's Authority to Consider New Evidence
- Requirements for Demonstrating Harmful Error in Administrative Proceedings
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
The appeal involved an applicant who was denied a security clearance based on concerns under Guideline G and Guideline J. The applicant requested a remand for a hearing, expressing regret for choosing a written record decision. The Board affirmed the denial, finding no harmful error alleged by the applicant.
Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.
Full decision
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Decision text, by section
Synopsis
KEYWORD: Guideline G; Guideline J DIGEST: Applicant states that he regrets choosing to have his case decided on the written record and requests his case be remanded for a hearing. Absent a showing of factual or legal error that affects a party’s right to present evidence in the proceeding below, a party does not have the right to have a second chance at presenting his or her case before an administrative judge. Adverse decision affirmed. CASE NO: 19-03083.a1 DATE: 09/30/2020
DATE: September 30, 2020 ) In Re: ) ) --------------------- ) ISCR Case No. 19-03083 ) ) Applicant for Security Clearance ) )
Appearances
FOR GOVERNMENT Julie R. Mendez, Esq., Deputy Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On December 11, 2019, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On June 24, 2020, after considering the record, Administrative Judge LeRoy F. Foreman denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant’s appeal brief makes no assertion of harmful error on the part of the Judge. His brief does contain assertions and documents that were not presented to the Judge for consideration. More specifically, he highlights statements the Judge made in the decision about the lack of evidence concerning pertinent matters, including the mitigating conditions, and now provides new evidence to address those deficiencies. The Appeal Board, however, is prohibited from considering new evidence. Directive ¶ E3.1.29.
Applicant states that he regrets choosing to have his case decided on the written record and requests his case be remanded for a hearing. Absent a showing of factual or legal error that affects a party’s right to present evidence in the proceeding below, a party does not have the right to have a second chance at presenting his or her case before an administrative judge. See, e.g., ISCR Case No. 14-02730 at 2 (App. Bd. Jun. 24, 2016). Applicant says that he declined the hearing in part because of the costs of attending a hearing in the Washington, DC area. In fact, the option for a hearing which he declined says, “In person at a location within 150 miles of your home or workplace, or by video teleconference (VTC) hearing before an Administrative Judge.” File of Relevant Material (FORM), last page of Item 1. Had he selected a hearing it would not have involved travel to the Washington, DC area. Applicant has not demonstrated error below and is not entitled to a hearing just so he can have another opportunity to present his case.
The Board does not review a case de novo. The Appeal Board’s authority to review a case is limited to cases in which the appealing party has alleged the Judge committed harmful error. Applicant has not made an allegation of harmful error on the part of the Judge. Therefore, the decision of the Judge is sustainable.
Order
The Decision is AFFIRMED. 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