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ISCR Case 03-26908.a1 — CASE

ISCR Case 03-26908.a1denied

Case Headnote

ISCR Case No. 03-26908.a1

Mar 16, 2007· Hon. Jean E. Smallin· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline J (Criminal Conduct) due to security concerns. The appeal board affirmed this denial.

The board clarified that the judge was not obligated to discuss every piece of evidence presented. Furthermore, the board stated it lacked the authority to grant waivers of 10 U.S.C. § 986. Consequently, the applicant's request for a security clearance was denied.

Conditions Referenced

Disqualifying

J.1raisedCriminal Conduct

Key Rule Quoted

“A Judge is not required to discuss each and every piece of record evidence.”
— ISCR Case No. 02-29608 at 4 (App. Bd. Dec. 17, 2003)

Procedural Posture

SOR issuedSep 16, 2005
Answer filed—
Hearing heldJul 12, 2006
Decision dateMar 16, 2007

Cite For

Affirmation of Denial Based on Guideline J (criminal Conduct)
Limitations on Appeal Regarding Evidence Discussion
Authority of the Appeal Board Concerning Waivers of 10 U.S.C. § 986

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 involved a denial of a security clearance based on security concerns under Guideline J. The Applicant argued that the Judge failed to discuss significant evidence in his favor and requested a waiver of 10 U.S.C. § 986. The Board affirmed the denial, finding no harmful error in the Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry — denied the clearance

Decided ona hearing

Guidelines belowGuideline J

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant argues that the Judge's decision fails to discuss significant evidence favorable to him.

Why the Board ruled this way

The Board found that the Judge was not required to discuss every piece of evidence and that it does not have the authority to grant waivers of 10 U.S.C. § 986. The Board also noted that the Applicant did not allege any harmful error.

Standard of review applied

No de-novo re-decisionNo new evidence on appealHarmful-error gatekeeper

Appeal Board panel

Jean E. Smallin
William S. Fields
James E. Moody

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

SYNOPSIS

KEYWORD: Guideline J DIGEST: Guideline JA Judge is not required to discuss every piece of evidence. The Board does not have authority to grant waivers to 10 USC 986. Adverse decision affirmed. CASENO: 03-26908.a1 DATE: 03/16/2007 DATE: March 16, 2007 In Re: ----------- SSN: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 03-26908

APPEAL BOARD SUMMARY DISPOSITION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 16, 2005, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On July 12, 2006, after the hearing, Administrative Judge Marc E. Curry After the Judge’s decision was issued the Defense Department began to implement new rules for adjudicating security clearance cases. Under these new rules, the Director, DOHA or his designee has the authority to grant waivers in meritorious case. See “Implementation of Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (Dec. 29, 2005).” There is no provision for waiver recommendations by Judges or others. See DOHA Operating Instruction 64, as revised, Sept. 12, 2006 (. . . the Administrative Judge shall not opine whether a waiver of 10 U.S.C. 986 is merited, nor recommend whether to consider the case for a waiver of 10 U.S.C. 986"). denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. On appeal, Applicant complains that the Judge’s decision fails to discuss significant evidence favorable to Applicant in evaluating the allegations in SOR paragraphs 1.a through 1.i. Applicant also requests that he be granted a waiver of 10 U.S.C. § 986, and presents new evidence in the form of statements supporting his request for waiver. A Judge is not required to discuss each an every piece of record evidence. See, e.g., ISCR Case No. 02-29608 at 4 (App. Bd. Dec. 17, 2003). Moreover, the Judge found in favor of Applicant with respect to SOR paragraphs 1.a through 1.i, so those allegations are not at issue on appeal. The Appeal Board does not have authority to grant waivers of 10 U.S.C. § 986. See, e.g., ISCR Case No. 04-11041 at 2-3 (App. Bd. Sept. 29, 2006). Nor does it have the authority to consider new evidence on appeal. See Directive ¶ E3.1.29. 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. Applicant has not made an allegation of harmful error. Therefore, the decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board