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ISCR 20-02265: Guideline B security clearance appeal (2022) · CASE

ISCR Case 20-02265unknown

Case headnote

ISCR Case No. 20-02265

Jul 8, 2022· Hon. Moira D. Modzelewski· appeal

Summary

This security clearance case involved an applicant, representing themselves, who faced an initial denial under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The applicant appealed this decision.

The appeal was granted, not on the merits of the allegations themselves, but due to significant procedural defects in the original decision. Specifically, the initial determination lacked formal findings regarding the specific allegations made against the applicant under both Guideline B and Guideline E.

As a result, the case has been remanded for a new decision. This new decision must address and correct the identified procedural errors by providing formal findings on the specific allegations, ensuring a proper basis for the security clearance determination. The outcome of the security clearance is currently none, pending this new decision.

Conditions referenced

Disqualifying

AG BraisedForeign Influence
AG EraisedPersonal Conduct

Key rule quoted

“An adverse security clearance decision shall make findings for or against an applicant with respect to each SOR allegation.”
Executive Order 10865

Procedural posture

SOR issuedSep 6, 2021
Answer filed—Applicant requested a decision on the written record.
Hearing heldApr 27, 2022
Decision dateJul 8, 2022Decision remanded due to procedural defects.

Cite for

Procedural Defects in Security Clearance Decisions
Requirement for Formal Findings on Specific Allegations
Remand for Correction of Identified Errors in 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 appeal involved a denial of a security clearance based on concerns under Guideline E and Guideline B. The Board found that the Administrative Judge failed to make formal findings on the specific allegations, leading to a remand for correction of this error. The decision is remanded for a new ruling addressing the specific SOR allegations.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene D. Lokey Anderson denied the clearance

Decided onthe written record

Guidelines belowGuideline EGuideline B

What the Board reviewed

Procedural error, raised by the applicantError sustained
The Judge did not make formal findings for or against Applicant on the specific SOR allegations.

Why the Board ruled this way

The Judge's failure to make formal findings for or against the specific SOR allegations constitutes a procedural error that impacts the Board's review.

Missing findings

On remand, the judge must

The Judge must issue a new decision after correcting identified error(s).

Standard of review applied

Procedural compliance

Appeal Board panel

James F. Duffy (Chair)
James E. Moody
Moira Modzelewski

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. 20-02265

)

) Applicant for Security Clearance ) _______________________________________) Date: July 8, 2022

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 September 6, 2021, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision⸺security concerns raised under Guideline E (Personal Conduct) and Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On April 27, 2022, 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. As a threshold matter, we note a procedural defect in the Judge’s decision under Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended. In her decision, the Judge did not make formal findings for or against Applicant on the specific SOR allegations. Instead, similar to decisions issued under DoD Manual 5200.02, Procedures for the Personnel Security Program (PSP), she merely found against Applicant on the

two alleged guidelines without addressing the specific allegations. Section 3(7) of Executive Order 10865 provides that an adverse security clearance decision shall make findings for or against an applicant with respect to each SOR allegation. See also Directive ¶ E3.1.25 (stating a clearance decision shall set forth “conclusions as to the allegations in the SOR”) and ISCR Case No. 08 07803 at 2 (App. Bd. Sep. 21, 2009). Highlighting this point, we note the Judge made no formal finding on a Guideline B allegation pertaining to one of Applicant’s foreign relatives who is now deceased. The Judge’s error impacts the Board’s review of the decision and potentially Applicant’s rights under the Directive. See, e.g., Directive ¶ E3.1.38. The Judge’s decision is remanded to correct this error. Upon remand, a judge is required to issue a new decision after correcting identified error(s). See 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board