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ISCR 06-22273.a1: Guideline E security clearance appeal (2007) · CASE

ISCR Case 06-22273.a1unknown

Case headnote

ISCR Case No. 06-22273.a1

Nov 28, 2007· Hon. Jeffrey D. Billett· appeal

Summary

This case involves an applicant, representing himself, who challenged the denial of his security clearance under Guideline E (Personal Conduct). The core of his appeal centered on the potential misdating of the Statement of Reasons (SOR).

The Board found merit in the applicant's argument that the SOR was incorrectly dated. This error was significant because it could have resulted in the application of outdated security clearance guidelines to his case.

Consequently, the Board did not issue a final decision on the clearance itself. Instead, the case was remanded for further proceedings. The purpose of this remand is to definitively resolve the correct date of the SOR and, by extension, determine which version of the security clearance guidelines should be applied to the applicant's situation.

Procedural posture

SOR issuedJan 27, 2006
Answer filedFeb 9, 2007stamped received on 2007-02-20
Hearing held—
Decision dateNov 28, 2007

Cite for

Potential Misdating of the SOR Affecting Guideline Application
Remand for Further Proceedings Due to Unresolved Issues
Consideration of the Correct Guidelines Based on SOR Date

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 a Statement of Reasons (SOR) that the Applicant argued was misdated, leading to the application of incorrect Guidelines. The Board found merit in the Applicant's claims and remanded the case for further proceedings to resolve the issues regarding the SOR's issuance and the applicable Guidelines.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowChristopher Graham denied the clearance

Decided onthe written record

Guidelines belowGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantError sustained
Applicant contends the SOR was misdated and that the Judge applied the wrong Guidelines as a result.

Why the Board ruled this way

The Board found merit in the Applicant's contention regarding the misdating of the SOR and the potential application of incorrect Guidelines, necessitating a remand for further proceedings.

No rational connection between facts and conclusion

On remand, the judge must

On remand, the Judge is permitted to reopen the record as appropriate to resolve any outstanding issues relating to the issuance of the SOR and the application of the appropriate Guidelines.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Y. Ra’anan (Chair)
Jeffrey D. Billett
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

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline E DIGEST: Applicant contends the SOR was misdated and that the Judge applied the wrong Guidelines as a result. Given the disparity in the date of the SOR and the answer, Applicant’s contentions may have merit. Adverse decision remanded. CASENO: 06-22273.a1 DATE: 11/28/2007 DATE: November 28, 2007 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-22273

APPEAL BOARD DECISION

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. DOHA issued a statement of reasons (SOR), dated January 27, 2006, advising Applicant of the basis for that decision—security concerns raised under Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested the case be decided on the written record. On August 31, 2007, after considering the record, Administrative Judge Christopher Graham 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 contends that the SOR in this case was misdated as January 27, 2006, when in fact it was issued in January 2007 and received by him in February 2007. Because of this possible misdating error, Applicant contends that the Judge applied the wrong Guidelines in his case—that is, the old Guidelines for SORs issued prior to September 1, 2006, rather than the new Guidelines for SORs issued after that date.

Normally, an applicant must submit his answer “. . . within 20 days from receipt of the SOR.” Directive at ¶ E3.1.4. If an applicant does not file a timely answer, DOHA may discontinue processing his case and deny him a clearance. Directive at ¶ E3.1.5. A review of the record indicates that Applicant’s answer to the SOR was dated February 9, 2007 and was stamped as received by DOHA on February 20, 2007. That means his answer would have been received more than a year after the date of the SOR. Although the letter transmitting the SOR to Applicant was similarly dated January 27, 2006, Applicant’s acknowledgment of receipt on that letter was dated February 1, 2007, and DOHA stamped this letter and acknowledgment as being received by DOHA on February 5, 2007. Department Counsel did not file a reply to Applicant’s appeal and there is no explanation as to why it would have taken over a year for Applicant to receive the SOR. Given the disparity in the dates between the SOR and the answer, and the fact that the SOR was issued close to the beginning of the year, Applicant’s assertions may have merit. However, because of the present state of the record, the Board is not in a position to resolve the issue. Accordingly, the case is remanded to the Judge. On remand, the Judge is permitted to reopen the record as appropriate to resolve any outstanding issues relating to the issuance of the SOR and the application of the appropriate Guidelines.

ORDER

The determination of the Judge denying Applicant a security clearance is REMANDED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board