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ISCR 19-03523: Guideline D security clearance appeal (2022) · CASE

ISCR Case 19-03523unknown

Case headnote

ISCR Case No. 19-03523

Jun 13, 2022· Hon. Moira D. Modzelewski· appeal

Summary

This security clearance case involved an applicant representing himself, facing denial under Department of Defense Adjudicative Guidelines D (Sexual Behavior), E (Personal Conduct), and J (Criminal Conduct). The concerns stemmed from issues related to sexual behavior, personal conduct, and criminal conduct.

The case was ultimately remanded for further review. This decision was made to determine the completeness of the record, as the applicant asserted that he had submitted additional documents that the Judge had not acknowledged.

At the time of this review, no final outcome regarding the security clearance decision had been reached.

Conditions referenced

Disqualifying

DraisedSexual Behavior
EraisedPersonal Conduct
JraisedCriminal Conduct

Procedural posture

SOR issuedFeb 28, 2020
Answer filed—
Hearing heldMar 22, 2022after close of record
Decision dateJun 13, 2022remanded 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· Full written decision

Remanded

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.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowRobert Robinson Gales granted the clearance

Decided ona hearing

Guidelines belowGuideline DGuideline EGuideline J

What the Board reviewed

No specific harmful error alleged, raised by the Government (Department Counsel)Not reached
Department Counsel argued that the record may not be complete.

Why the Board ruled this way

The Board found that the record may not be complete and determined that remanding the case for further review was the best resolution.

On remand, the judge must

The Judge is required to determine whether the record is complete and issue a new decision.

Appeal Board panel

James F. Duffy (Chair)
Moira Modzelewski
Jennifer I. Goldstein

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

_______________________________________________ ) 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

APPEAL BOARD DECISION

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