A decided public DOHA case, shown for research, not advice or a prediction.
ISCR Case No. 06-03230.a1
Appeal BoardDecided Apr 24, 2007 · Administrative Judge Jean E. Smallin · Appeal
Case headnote
Summary
The applicant, represented by counsel, sought a security clearance but was denied based on concerns under Guideline J (Criminal Conduct). The Appeal Board affirmed the denial, noting that it lacked authority to recommend waivers and that the applicant did not allege any harmful error by the Administrative Judge.
Why the applicant was denied
- The Appeal Board affirmed the denial of the security clearance based on Guideline J (Criminal Conduct).
- The applicant did not allege any harmful error by the Administrative Judge.
Conditions referenced
Disqualifying
- J1 Criminal conductraised
Key rule quoted
“The Appeal Board does not have authority to recommend that Applicant be granted a waiver under 10 U.S.C. § 986.”
Procedural posture
- SOR issued
- 2006-06-22
- Answer filed
- Hearing held
- 2006-11-30
- Decision date
- 2007-04-24
Cite for
- Affirmation of Denial Based on Guideline J (criminal Conduct)
- Limitations of the Appeal Board's Authority Regarding Waivers
- Absence of Harmful Error Allegations in Appeals Process.
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 appeal was filed by the applicant after the Administrative Judge denied their request for a security clearance based on security concerns under Guideline J. The applicant's appeal did not assert any errors by the judge but requested a waiver recommendation, which the Board cannot provide. The Board affirmed the judge's decision.
Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.
Full decision
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Decision text, by section
Synopsis
KEYWORD: Guideline J DIGEST: The Appeal Board does not have authority to recommend that Applicant be granted a waiver under 10 USC 986. Adverse decision affirmed. CASENO: 06-03230.a1 DATE: 04/24/2007 DATE: April 24, 2007 In Re: ------- SSN: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-03230
Appearances
FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT M. Jefferson Euchler, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 22, 2006, 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 November 30, 2006, after the hearing, Administrative Judge Jacqueline T. Williams denied Applicant’s request for a security clearance. Applicant timely appealed pursuant Only 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"). to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant’s appeal brief contains no assertion of error on the part of the Judge. It only contains a request that the Appeal Board concur in the Judge’s findings and recommend that Applicant be granted a waiver of 10 U.S.C. § 986. The Appeal Board does not have authority to recommend that Applicant be granted a waiver of 10 U.S.C. § 986.1 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: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board William S. Fields William S. Fields Administrative Judge Member, Appeal Board