A decided public DOHA case, shown for research, not advice or a prediction.
ISCR Case No. 19-03523
Appeal BoardDecided Jun 13, 2022 · Administrative Judge Moira D. Modzelewski · Appeal
Case headnote
Summary
The applicant, representing himself, faced security clearance denial under Guidelines D, E, and J due to concerns related to sexual behavior, personal conduct, and criminal conduct. The case was remanded for further review to determine if the record was complete, as the applicant claimed to have submitted additional documents that were not acknowledged by the Judge.
Conditions referenced
Disqualifying
- D Sexual Behaviorraised
- E Personal Conductraised
- J Criminal Conductraised
Procedural posture
- SOR issued
- 2020-02-28
- Answer filed
- Hearing held
- 2022-03-22 after close of record
- Decision date
- 2022-06-13 remanded for further review
Cite for
- Remand for Completeness of Record
- Issues of Document Submission in Security Clearance Cases
- Procedural Requirements for Appeals in Security Clearance Decisions
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
The Department of Defense declined to grant the Applicant a security clearance based on security concerns. The Administrative Judge granted the clearance, but the Department Counsel appealed, arguing that the record was incomplete. The Board remanded the case for the Judge to determine the completeness of the record and issue a new decision.
Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.
Full decision
Open original PDFThe complete official text, footnotes and signatures included, is in the original PDF.
Decision text, by section
Appearances
_______________________________________________ ) In the matter of: )
)
)
------ )
ISCR Case No. 19-03523
)
) 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 Date: June 13, 2022
Appearances
FOR GOVERNMENT Bryan Olmos, Esq., Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On February 28, 2020, DoD issued a statement of reasons (SOR) advising Applicant of the basis of that decision―security concerns raised under Guideline D (Sexual Behavior), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct) of DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). Applicant requested a hearing. On March 22, 2022, after close of the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Robert Robinson Gales granted Applicant’s request for a security clearance. Department Counsel appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. An examination of the record reveals that it may not be complete. In his brief, Department Counsel noted the Judge requested at the hearing that Applicant provide a complete copy of the records of the treatment he received from a psychologist. Appeal Brief at 6, quoting from Tr. at 45. Department Counsel also argued that “Applicant produced none of the additional material.
Instead, he provided [a record from his primary care physician] showing ongoing treatment for depression.” Id. In his reply brief, Applicant argues that statement is false, claiming he submitted in a timely manner 30 additional “documents” from the psychologist, including “every record he held[,]” as well as records from his primary care physician. Reply Brief at 2. In the decision, the Judge noted he received two post-hearing documents from Applicant that were marked as Applicant’s Exhibits F (a three-page final report from the primary care physician) and G (a one- page Order of Termination of Probation from a county court). Based on the foregoing, we conclude the best resolution is to remand this case for the Judge to determine whether the record is complete. On remand, the Judge is required to issue a new decision. Directive ¶ E3.1.35. The Board retains no continuing jurisdiction over a remanded decision. However, a Judge’s decision issued after remand may be appealed pursuant to Directive ¶¶ E3.1.28. and E3.1.30.
Order
The decision is REMANDED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board Signed: Jennifer I. Goldstein Jennifer I. Goldstein Administrative Judge Member, Appeal Board