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ISCR Case 20-01759.a1 — CASE

ISCR Case 20-01759.a1unknown

Case Headnote

ISCR Case No. 20-01759.a1

Oct 21, 2021· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant, represented by Christopher Macchiaroli, whose security clearance was challenged under Guideline F (Financial Considerations) due to nine delinquent debts totaling approximately $55,000. The applicant admitted to these debts.

Initially, the judge found against the applicant on each Statement of Reasons (SOR) allegation, citing a lack of documentation demonstrating progress in resolving the debts. However, the appeal board remanded the case, identifying due process violations related to the submission of evidence. This decision allowed the applicant to reopen the record and submit additional documentation.

Despite the opportunity to provide further evidence, the final outcome of the security clearance decision is not specified.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Key Rule Quoted

“We may consider new evidence insofar as it bears upon a question of due process.”
— ISCR Case No. 17-01472 at 2 (App. Bd. Aug. 6, 2018)

Procedural Posture

SOR issuedNov 4, 2020
Answer filed—
Hearing heldJun 7, 2021
Decision dateOct 21, 2021Appeal remanded due to due process issues.

Cite For

Due Process Violations in Evidence Submission
Remand for Reopening of Record
Consideration of New Evidence Related to Due Process

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 he had submitted a timely response to the FORM, which was not considered. The Board remanded the case to allow the applicant to submit his response and any supporting documents, as the initial submission was sent to the wrong address.

Appealed bythe applicant

Applicant representationAttorney

Judge belowDarlene D. Lokey Anderson — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Due-process / fairness — raised by the applicantError sustained
The applicant raised a due process issue regarding the submission of his response to the FORM.

Why the Board ruled this way

The Board found that the applicant's due process rights may have been violated due to the misdirection of his FORM response, warranting a remand for further proceedings.

Other

On remand, the judge must

The Judge shall reopen the record to provide Applicant an opportunity to submit the FORM response he sent to the DCSA CAF and issue a new decision in the case.

Standard of review applied

Harmful-error gatekeeperNo 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

APPEARANCES

_______________________________________________

APPEAL BOARD DECISION

DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 KEYWORD: Guideline F DIGEST: Applicant’s appeal brief raises a due process issue. His brief contains a declaration signed by him that asserts he emailed a response to the FORM before the deadline and contains copies of documents that he claims were submitted with that response. In this regard, 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 a question of due process. Decision is Remanded. CASE NO. 20-01759.a1 DATE: 10/21/2021 Date: October 21, 2021 ) In the matter of: )

)

------------------------ )

ISCR Case No. 20-01759

)

) Applicant for Security Clearance ) _______________________________________)

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Christopher Macchiaroli

The Department of Defense (DoD) declined to grant Applicant a security clearance. On November 4, 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 DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On June 7, 2021, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Darlene D. Lokey Anderson denied Applicant’s request for a security clearance. 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 nine delinquent debts totaling about $55,000. In responding to the SOR, Applicant admitted the delinquent accounts. The Judge noted that Applicant did not submit a response to Department Counsel’s File of Relevant Material (FORM). The Judge found against Applicant on each SOR allegation, noting he failed to present documentation of a payment history that showed progress in resolving the debts. Applicant’s appeal brief raises a due process issue. His brief contains a declaration signed by him that asserts he emailed a response to the FORM before the deadline and contains copies of documents that he claims were submitted with that response. In this regard, 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 a question of due process. See, e.g., ISCR Case No. 17-01472 at 2 (App. Bd. Aug. 6, 2018). We note that Applicant’s FORM response was apparently sent to the wrong address. The cover letter forwarding the FORM to Applicant indicated that his response should be sent to a DOHA Legal Assistant. Contrary to that guidance, he emailed his response to an address at the Consolidated Adjudications Facility (CAF) of the Defense Counterintelligence and Security Agency (DCSA). Although Applicant did not comply with the directions provided in the cover letter, 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 the FORM response he sent to the DCSA CAF. 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. through E3.1.35. Applicant’s brief contains other assignments of error that are not ripe for our 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