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ISCR 20-02885: Guideline E security clearance appeal, denied (2021) · CASE

ISCR Case 20-02885denied

Case headnote

ISCR Case No. 20-02885

Oct 18, 2021· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance due to concerns under Guideline G (Alcohol Consumption) and Guideline E (Personal Conduct). The denial stemmed from a recent DUI conviction, which raised disqualifying conditions G.2.a and E.2.

The applicant appealed the decision, but the appeal was denied. The primary reasons for the denial of the appeal were that the applicant did not assert any harmful error committed by the judge during the initial hearing. Additionally, new evidence regarding the terms of his probation was presented during the appeal process, but it could not be considered as it had not been introduced during the initial hearing.

Consequently, the security clearance was denied, as the applicant failed to demonstrate any procedural error by the judge and presented new information too late for consideration.

Conditions referenced

Disqualifying

G.2.araisedAlcohol-related Offenses
E.2raisedPersonal Conduct That Reflects Lack of Judgment

Key rule quoted

“The Appeal Board is prohibited from considering new evidence on appeal.”
Directive ¶ E3.1.29

Procedural posture

SOR issuedJan 4, 2021
Answer filed—
Hearing heldJul 12, 2021Decision made by Administrative Judge Stephanie C. Hess.
Decision dateOct 18, 2021Appeal decision affirmed by the Appeal Board.

Cite for

Affirmation of Denial Based on Alcohol-related Offenses Under Guideline G
Limitations on New Evidence During Appeal Process
Requirements for Asserting Harmful Error in 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

Affirmed

The appeal was filed by the Applicant after the Administrative Judge denied his request for a security clearance based on security concerns under Guideline G and Guideline E. The Applicant's appeal did not assert any harmful error, and the Board affirmed the decision as the appeal did not meet the necessary criteria for reversal.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowStephanie C. Hess denied the clearance

Decided onthe written record

Guidelines belowGuideline GGuideline E

What the Board reviewed

No specific harmful error alleged, raised by the applicantRejected
Applicant's appeal brief makes no assertion of harmful error on the part of the Judge.

Why the Board ruled this way

The Board affirmed the decision because the Applicant did not allege any harmful error by the Judge, and the Board is prohibited from considering new evidence on appeal.

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

APPEARANCES

[Extraction unavailable]

APPEAL BOARD DECISION

_______________________________________________ ) In the matter of: )

)

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

ISCR Case No. 20-02885

)

) Applicant for Security Clearance ) _______________________________________) 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 G; Guideline E DIGEST: Applicant’s appeal brief makes no assertion of harmful error on the part of the Judge. It does set forth the specific terms and conditions of his probation imposed for a recent Driving Under the Influence of Alcohol conviction. This is information that was not previously presented to the Judge for consideration. The Appeal Board is prohibited from considering new evidence on appeal. Directive ¶ E3.1.29. Adverse Decision Affirmed. CASE NO: 20-02885 DATE: 10/18/2021 Date: October 18, 2021

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 January 4, 2021, 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 E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On July 12, 2021, after considering the record, Administrative Judge Stephanie C. Hess 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. It does set forth the specific terms and conditions of his probation imposed for a recent Driving Under the Influence of Alcohol conviction. This is information that was not previously presented to the Judge for consideration. The Appeal Board is prohibited from considering new evidence on appeal. Directive ¶ E3.1.29. The Board does not review cases 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. Because Applicant has not made such an allegation of error, the decision of the Judge denying Applicant a security clearance 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