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ISCR 20-00523.a1: Guideline F security clearance appeal (2021) · CASE

ISCR Case 20-00523.a1unknown

Case headnote

ISCR Case No. 20-00523.a1

Aug 11, 2021· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance case, decided under Guideline F (Financial Considerations), involved an applicant representing herself who faced issues due to approximately $67,800 in delinquent student loans. The applicant admitted to having 12 such loans.

The initial judge determined that the applicant failed to submit a response to the Statement of Reasons (SOR) or provide corroborating evidence for her claims regarding the student loans. However, the appeal board found merit in the applicant's argument that her timely responses concerning her financial situation were not adequately considered during the initial review.

Consequently, the case was remanded for the submission of additional evidence. No final security clearance outcome has been reached at this stage.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Procedural posture

SOR issuedMay 15, 2020
Answer filed—
Hearing heldApr 8, 2021
Decision dateAug 11, 2021Appeal remanded for further evidence submission.

Cite for

Due Process Issues Related to Evidence Submission Under Guideline F
Remand for Reopening the Record to Allow Additional Evidence
Consideration of Communications Regarding Timely Responses to the FORM

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 financial considerations. The applicant argued that she submitted timely evidence that was not considered by the Administrative Judge. The Board found merit in the applicant's due process claim and remanded the case for further proceedings to allow the applicant to submit additional evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPaul J. Masonden denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Due-process / fairness, raised by the applicantError sustained
The applicant contended that she submitted timely evidence in response to the FORM that was not considered by the Judge.

Why the Board ruled this way

The Board found that the applicant's due process rights were potentially violated due to the failure to consider timely submitted evidence, warranting a remand for further proceedings.

Ignored material evidence

On remand, the judge must

The Judge shall reopen the record to provide Applicant an opportunity to submit additional evidence and issue a new decision in the case.

Standard of review applied

No 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 F DIGEST: Screen shots attached to Applicant’s brief confirm the communications on December 7, 2020, and January 13, 2021, noted above. The latter communication shows the FSO had possession of the packet Applicant mailed to the DOHA Legal Assistant and indicated he would stick it in another envelope and forward it. (Although he suggests that he would forward it to the “investigator,” which may explain the problem.) In short, these communications support her contention that she submitted a timely response to the FORM that did not make it into the record. Her appeal brief also indicates that she is living overseas, which also may have complicated communications. Adverse Decision Remanded. CASE NO: 20-00523.a1 DATE: 08/11/2021 DATE: August 11, 2021 ) In Re: ) ) ----------------------- ) ISCR Case No. 20-00523 ) ) 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 May 15, 2020, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On April 8, 2021, after considering the record, Administrative Judge Paul J. Masondenied Applicant’s request for a securityclearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. For reasons stated below, we remand the decision. The SOR alleged that Applicant had 12 delinquent student loans totaling about $67,800. In responding to the SOR, Applicant admitted the delinquent accounts. The Judge noted that Applicant neither submitted a response to Department Counsel’s File of Relevant Material (FORM) nor corroborated her claims about the student loans. The Judge found against Applicant on each of the alleged student loans, concluding there are no indications her indebtedness is being reduced or is under control. Applicant’s appeal brief raises a due process issue. In support of that issue, her brief contains assertions and screen shots of text messages that were not presented to the Judge for consideration. The Appeal Board is generally prohibited from considering new evidence. Directive ¶ E3.1.29. However, we may 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). In her brief, Applicant basically contends that she submitted matters in response to the FORM that were not presented to the Judge. Specifically, she states: Please be advised that on December 7, 2020, my FSO [name deleted] stated that he would be sending me a packet to complete and turn in as soon as possible. I received the package on December 8, 2020. The next day on December 9, 2020, I was able to complete all the necessary information and send it off to the address provided in the body of the email. Evidence shows screen shots of the email exchange between [the FSO] and me. Once the package . . . which contained evidence of my financial aid payments and deferments along with responses to the allegations on why some of my loans were not paid on time. This package was detailed and contained information that would have allowed the judge more evidence to use to base his/her decision on. As shown in the screen shots, once I sent the package off, I did not receive any correspondence from [the FSO] until January 13, 2021, stating he received the packet, and it always shows the email chain insinuating that it was sent to the wrong address that he would redirect the packet to the correct address. For months following, I would email [the FSO] and call him with absolutely no luck. I was finally able to receive the decision “unfavorable” after months of attempting to receive an update on my case from my FSO. [Appeal Brief at 1.]

The screen shots attached to Applicant’s brief confirm the communications on December 7, 2020, and January 13, 2021, noted above. The latter communication shows the FSO had possession of the packet Applicant mailed to the DOHA Legal Assistant and indicated he would stick it in another envelope and forward it. (Although he suggests that he would forward it to the “investigator,” which may explain the problem.) In short, these communications support her contention that she submitted a timely response to the FORM that did not make it into the record. Her appeal brief also indicates that she is living overseas, which also may have complicated communications. 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