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ISCR 21-02817: Guideline F security clearance appeal (2023) · CASE

ISCR Case 21-02817unknown

Case headnote

ISCR Case No. 21-02817

Jan 23, 2023· Hon. Gregg A. Cervi· appeal

Summary

An applicant, representing himself, faced a security clearance denial under Guideline F (Financial Considerations) due to 17 admitted delinquent debts totaling approximately $48,000. The Administrative Judge initially found that Disqualifying Condition F.1 applied, citing the applicant's history of not meeting financial obligations.

The applicant appealed this decision, raising a due process concern. He argued that additional evidence he had submitted was not considered by the Administrative Judge during the initial review.

Consequently, the case was remanded. The Administrative Judge was instructed to reopen the record and review the applicant's submitted materials. No final security clearance outcome has been determined at this stage.

Conditions referenced

Disqualifying

F.1raisedFinancial Considerations

Procedural posture

SOR issuedJan 11, 2022
Answer filed—
Hearing heldDec 19, 2022Decision issued by Administrative Judge
Decision dateJan 23, 2023Appeal decision remanding the case

Cite for

Due Process Considerations in Security Clearance Appeals
Remand for Reopening the Record to Consider Additional Evidence
Impact of Procedural Errors on 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 appeal involved a denial of a security clearance based on financial considerations. The applicant argued that important materials submitted in response to the FORM were not considered by the Administrative Judge. The Board agreed and remanded the case for further consideration of the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowArthur E. Marshall denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantError sustained
The applicant asserted that materials submitted in response to the FORM were not considered by the Judge.

Why the Board ruled this way

The Board found that the Judge did not consider all relevant materials submitted by the applicant, which warranted a remand to correct this error.

Missing findings

On remand, the judge must

The Judge is to reopen the record to consider the materials submitted by the applicant in response to the FORM.

Standard of review applied

Harmful-error gatekeeperNo de-novo re-decisionNo new evidence on appealProcedural compliance

Appeal Board panel

James F. Duffy (Chair)
Moira Modzelewski
Gregg A. Cervi

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:

)

) )

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)

ISCR Case No. 21-02817 ) ) Applicant for Security Clearance ) ______________________________________) Date: January 23, 2023

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 January 11, 2022, 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 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On December 19, 2022, after considering the record, Administrative Judge Arthur E. Marshall denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant’s appeal brief contains matters from outside the record, which we are generally precluded from considering. Directive ¶ E3.1.29. However, we have previously considered new evidence when examining threshold issues, such as due process or jurisdiction. See, e.g., ISCR Case No. 14-00812 at 2 (App. Bd. Jul. 8, 2015). Applicant’s appeal brief raises such a due process issue, as he asserts that he submitted materials in response to the FORM that were not forwarded to or considered by the Judge.

The SOR alleged 17 delinquent debts that totaled about $48,000. In his Answer to the SOR, Applicant admitted the debts and submitted documentation of his ongoing efforts to resolve the debts. On May 13, 2022, Department Counsel sent Applicant a copy of the File of Relevant Material (FORM). On May 23, 2022, Applicant signed a document acknowledging receipt of the FORM. That correspondence afforded him 30 days from its receipt—until June 22, 2022—to submit additional matters to DOHA. From the record and appeal brief before us, it appears that Applicant responded to the FORM on May 24, 2022, but that he mailed his cover letter and supporting documents to DoD’s adjudication office at Fort Meade rather than to DOHA. Applicant followed up this initial hard- copy response with email correspondence to Department Counsel on June 6, 2022, and again on June 22, 2022. That email correspondence, however, did not contain any supporting documents from the initial hard-copy response. In other words, the FORM was submitted to the Judge with the email correspondence sent to Department Counsel, but lacking the documents sent to Fort Meade. The Judge issued his decision on December 19, 2022.1 In his appeal, Applicant requests that his FORM response be taken into consideration. Given these circumstances, we conclude the best solution is to remand the case to the Judge so that he may reopen the record to correct this error. Directive ¶ E3.1.35 requires the Judge to issue a new decision on remand. 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 to E3.1.35. 1 Although the Judge states in his decision that Applicant did not respond to the FORM, he later cites to items that Applicant submitted by email correspondence to Department Counsel. From our review, it appears that the Judge received and considered the matters that Applicant submitted by email to Department Counsel.

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: Gregg A. Cervi Gregg A. Cervi Administrative Judge Member, Appeal Board