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ISCR Case 06-03230.a1 — CASE

ISCR Case 06-03230.a1denied

Case Headnote

ISCR Case No. 06-03230.a1

Apr 24, 2007· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance under Guideline J (Criminal Conduct). The Administrative Judge's decision to deny the clearance was affirmed by the Appeal Board.

The Appeal Board noted that it lacked the authority to recommend waivers for the applicant's criminal conduct. Furthermore, the applicant did not allege any harmful error on the part of the Administrative Judge during the initial decision-making process.

Consequently, the Appeal Board upheld the denial of the security clearance, citing the unmitigated concerns under Guideline J.

Conditions Referenced

Disqualifying

J1raisedCriminal Conduct

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 issuedJun 22, 2006
Answer filed—
Hearing heldNov 30, 2006
Decision dateApr 24, 2007

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· Summary disposition

Affirmed

The appeal involved a denial of a security clearance based on security concerns under Guideline J. The Applicant did not assert any errors in the Administrative Judge's decision and requested a waiver recommendation, which the Board cannot provide. The Board affirmed the denial of the security clearance.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJacqueline T. Williams — denied the clearance

Decided ona hearing

Guidelines belowGuideline J

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant did not assert any harmful error on the part of the Judge.

Why the Board ruled this way

The Appeal Board affirmed the Administrative Judge's decision because the Applicant did not allege any harmful error, and the Board lacks authority to recommend waivers under 10 USC 986.

Appeal Board panel

Michael D. Hipple
Jean E. Smallin
William S. Fields

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: 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

APPEAL BOARD SUMMARY DISPOSITION

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