CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 06-03606.a1 — CASE

ISCR Case 06-03606.a1denied

Case Headnote

ISCR Case No. 06-03606.a1

May 23, 2007· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance under Guideline E (Personal Conduct) and Guideline M (Use of Information Technology). The denial stemmed from the applicant's admitted misuse of a company computer to access inappropriate websites, which raised disqualifying conditions under Adjudicative Guidelines Paragraphs 14 and 15.

The applicant appealed the decision, claiming an error in the judge's synopsis. However, the Board upheld the denial, finding no harmful error in the judge's decision. The Board noted that the applicant did not assert any specific harmful error during the appeal process, and new evidence could not be considered at that stage.

Ultimately, the denial was affirmed because the applicant admitted to the allegations of computer misuse, and the Board found no basis to overturn the initial decision.

Conditions Referenced

Disqualifying

AG ¶ 15raisedMisuse of Information Technology Systems
AG ¶ 14raisedPersonal Conduct

Key Rule Quoted

“The Board cannot consider new evidence on appeal.”

Procedural Posture

SOR issuedJul 18, 2006
Answer filed—Applicant requested decision upon written record.
Hearing heldNov 27, 2006Decision made by Administrative Judge Shari Dam.
Decision dateMay 23, 2007Board affirmed denial.

Cite For

Upheld Denial Based on Admitted Misuse of Company Computer
Limitations on Considering New Evidence on Appeal
No Assertion of Harmful Error Leads to Affirmation of Lower Decision

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 was regarding the denial of a security clearance based on misuse of a company computer. The Board found no harmful error in the Judge's decision and affirmed the denial.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowShari Dam — denied the clearance

Decided onthe written record

Guidelines belowGuideline MGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantError found, but harmless
Applicant asserted the Judge erred in the synopsis regarding the use of a government computer instead of a company computer.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board affirmed the Judge's decision as Applicant did not allege harmful error and the claimed error was found to be harmless. The Board cannot consider new evidence on appeal.

Standard of review applied

No new evidence on appealNo de-novo re-decisionHarmful-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 M; Guideline E DIGEST: The Board cannot consider new evidence on appeal. Adverse decision affirmed. CASENO: 06-03606.a1 DATE: 05/23/2007 DATE: May 23, 2007 In Re: ------- SSN: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-03606

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 July 18, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline M (Misuse of Information Technology Systems) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested the case be decided upon the written record. On November 27, 2006, after considering the record, Administrative Judge Shari Dam denied Applicant’s request for a security clearance. Applicant appealed the Judge’s Applicant asserts the Judge erred in the synopsis when she stated Applicant had improperly used a government computer to access pornographic and foreign web sites, when in fact Applicant had improperly used a company computer to access those sites. The Board has previously noted that absent unusual circumstances, a flaw or failing in the synopsis of a Judge’s decision is not likely to be harmful error. See, e.g., ISCR Case No. 02-06338 at 3 (App. Bd. Sept. 7, 2004). In this case, the SOR alleged Applicant had improperly used a company computer to access pornographic and foreign web sites. Applicant had admitted to the allegations, and the Judge made sustainable findings in that regard in text of her decision. Accordingly, the error noted by Applicant is harmless. unfavorable clearance decision. Applicant’s appeal brief contains no assertion of harmful error on the part of the Judge.1 Rather, it contains new evidence, in the form of a statement from the Applicant clarifying his answer to paragraph 1.dof the SOR. Applicant also describes his ongoing efforts to improve his behavior and work performance, and to obtain mental and behavioral counseling from a credentialed professional. The Board cannot consider Applicant’s 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. It does not review cases de novo. 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