CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 19-03083.a1 — CASE

ISCR Case 19-03083.a1denied

Case Headnote

ISCR Case No. 19-03083.a1

Sep 30, 2020· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The applicant appealed the decision, but the appeal board affirmed the denial, finding the original decision sustainable.

The board noted that the applicant failed to demonstrate any harmful error by the judge in the initial decision. Furthermore, the applicant's appeal did not assert any legal or factual errors that would have affected his right to present evidence.

A key factor in the board's affirmation was the applicant's decision to decline a hearing option that would not have required travel. This denial was based on disqualifying conditions G.2.a and J.1.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Offenses
J.1raisedCriminal Conduct

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.”
— ISCR Case No. 14-02730 at 2 (App. Bd. Jun. 24, 2016)

Procedural Posture

SOR issuedDec 11, 2019
Answer filed—
Hearing held—Applicant requested a decision on the written record.
Decision dateSep 30, 2020

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· Full written decision

Affirmed

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.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowLeRoy F. Foreman — denied the clearance

Decided onthe written record

Guidelines belowGuideline GGuideline J

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant did not allege any specific harmful error by the Judge.

Why the Board ruled this way

The Board affirmed the Administrative Judge's decision as the applicant did not allege any harmful error and the decision was supported by the record. The applicant's request for a remand for a hearing was denied as he did not demonstrate any error that would warrant such action.

Standard of review applied

No de-novo re-decisionNo new evidence on appeal

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 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 ) )

APPEAL BOARD DECISION

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