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ISCR 19-01504.a1: Guideline E security clearance appeal (2021) · CASE

Case record

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

Decision Date9/3/2021
Statusunknown
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionsSee the appeal decision (Case 19-01504) →See the hearing decision (Case 19-01504) →See the appeal decision (Case 19-01504) →See the hearing decision (Case 19-01504) →See the hearing decision (Case 19-01504) →
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
- HDrug Involvement & Substance Misuse · Against Applicant
- JCriminal Conduct · Against Applicant
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ISCR Case 19-01504.a1unknown

Case headnote

ISCR Case No. 19-01504.a1

Sep 3, 2021· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant who, representing himself, faced a security clearance denial under Guidelines J (Criminal Conduct), H (Drug Involvement), and E (Personal Conduct). The denial stemmed from concerns related to these three areas.

The applicant appealed the decision, asserting that he had submitted additional evidence that the Judge had not received. This claim formed the basis of his appeal.

As a result, the case was remanded for further consideration. This action allows the applicant the opportunity to submit the evidence he claimed was previously unreceived, ensuring it is reviewed as part of the security clearance determination process. No final outcome on the clearance has been reached.

Conditions referenced

Disqualifying

Guideline JraisedCriminal Conduct
Guideline HraisedDrug Involvement and Substance Misuse
Guideline EraisedPersonal Conduct

Procedural posture

SOR issuedJul 15, 2019
Answer filed—
Hearing heldJun 10, 2021
Decision dateSep 3, 2021

Cite for

Remand for Consideration of Additional Evidence Not Received by the Judge
Issues Regarding the Handling of Evidence in Security Clearance Cases
Due Process Considerations in Security Clearance Appeals

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 multiple guidelines. The Applicant contended that he submitted additional evidence before the deadline, which the Judge did not consider. The Board found merit in the Applicant's claims and remanded the case for further consideration of the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowLeRoy F. Foreman denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline HGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantError sustained
The Judge failed to consider evidence that the Applicant claims to have submitted before the deadline.
Decision arbitrary, capricious, or contrary to law, raised by the applicantError sustained
The Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge did not receive evidence that the Applicant claims to have submitted, which may have affected the outcome of the decision. The case is remanded to allow the Applicant to present this evidence.

Ignored material evidence

On remand, the judge must

The Judge shall reopen the record to provide Applicant an opportunity to submit additional evidence.

Standard of review applied

Harmful-error gatekeeperNo 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 J; Guideline H; Guideline E DIGEST: At the hearing, the Judge left the record open until May 21, 2021, for Applicant to submit additional matters. Tr. At 71-72 and 77-78. In the decision, the Judge noted Applicant did not submit any additional matters. In his appeal brief, Applicant contends that he submitted matters on May 20, 2021. There are documents that tend to support Applicant’s contention. Decision is Remanded. CASE NO: 19-01504.a1 DATE: 09/03/2021 DATE: September 3, 2021 ) In Re: ) ) ------------------------- ) ISCR Case No. 19-01504

) ) 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 July 15, 2019, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct), Guideline H (Drug Involvement and Substance Misuse), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Department Counsel requested a hearing. On June 10, 2021, after the hearing, Defense Office of Hearings and Appeals (DOHA) 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 raised the following issues on appeal: whether Applicant submitted documentary evidence that was not included in the record and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we remand the case to the Judge. Applicant’s appeal brief contains matters from outside the record, which we are generally precluded from considering. Directive ¶ E3.1.29. We will, however, consider new evidence insofar as it bears upon questions of due process or jurisdiction. See, e.g., ISCR Case No. 17-01472 at 2 (App. Bd. Aug. 6, 2018). At the hearing, the Judge left the record open until May 21, 2021, for Applicant to submit additional matters. Tr. at 71-72 and 77-78. In the decision, the Judge noted Applicant did not submit any additional matters. In his appeal brief, Applicant contends that he submitted matters on May 20, 2021. In resolving cases in which applicants claim to have submitted documents that were not received, we generally examine the record and the briefs to see whether there is any support for this claim. See, e.g., ISCR Case No. 15-03712 at 2 (App. Bd. Jan. 11, 2018). At the hearing, the Judge asked Applicant if he had any character reference letters or pictures of awards that he could send to him. Applicant said he would provide those matters. Tr. at 69-72. We note Applicant’s brief contains two character reference letters that were prepared shortlybefore the post-hearing submission deadline. It also contains pictures of employment awards that he indicated he would provide to the Judge. These documents tend to support Applicant’s claim that he submitted matters the Judge did not receive. Based on the above, we conclude the best course of action is to remand the case to the Judge to reopen the record to provide Applicant an opportunity to submit additional evidence. As provided in Directive ¶ E3.1.35, the Judge shall, upon remand, issue a new decision in the case. The Board retains no continuing jurisdiction over a remanded decision. However, a decision issued after remand may be appealed pursuant to Directive ¶¶ E3.1.28. to E3.1.35. See Directive ¶ E3.1.35.

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