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ISCR Case 08-06802.a1 — CASE

ISCR Case 08-06802.a1denied

Case Headnote

ISCR Case No. 08-06802.a1

Aug 5, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance due to concerns under Guideline F (Financial Considerations) and Guideline E (Personal Conduct). The denial was based on the applicant's failure to respond to the government's File of Relevant Material, which was critical to the judge's decision.

The judge's determination relied solely on the evidence presented, including the government's submitted materials. Disqualifying conditions AG ¶ 20 and AG ¶ 15 were raised during the proceedings.

The applicant's subsequent appeal was denied, as he did not demonstrate any error in the judge's reliance on the existing evidence. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Key Rule Quoted

“A party cannot reasonably expect a Judge’s decision to be based on evidence which was not before the Judge.”

Procedural Posture

SOR issuedSep 4, 2008
Answer filed—Applicant requested a decision on the written record.
Hearing heldMay 29, 2009Administrative Judge denied the request for a security clearance.
Decision dateAug 5, 2009Appeal Board affirmed the adverse decision.

Cite For

Failure to Respond to the Government's File of Relevant Material Under Guideline F and E
Importance of Evidence Presented at the Time of the Judge's Decision
Limitations on New Evidence During the Appeal 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· Full written decision

Affirmed

The appeal involved an applicant seeking a security clearance who was denied based on security concerns under Guideline F and Guideline E. The applicant argued that the Judge's decision was arbitrary and based on outdated evidence. The Board affirmed the Judge's decision, noting that the applicant had the opportunity to submit current evidence but did not do so.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMary E. Henry — denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge’s decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board affirmed the Judge's decision because the Applicant did not respond to the government's File of Relevant Material and failed to demonstrate error in the Judge's decision-making process.

Standard of review applied

No de-novo re-decisionNo new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious review

Appeal Board panel

Michael Y. Ra’anan
Michael D. Hipple
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 F; Guideline E DIGEST: Applicant did not respond to the government’s file of relevant material. A party cannot reasonably expect a judge’s decision to be based on evidence which was not before the Judge. Adverse decision affirmed. CASENO: 08-06802.a1 DATE: 08/05/2009 DATE: August 5, 2009 In Re: ---- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-06802

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. On September 4, 2008, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested a decision on the written record. On May 29, 2009, after reviewing the record, Administrative Judge Mary E. Henry denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. In his appeal brief, Applicant contends that the evidence relied on by the Judge was not current. Applicant sought to acquire new evidence for purpose of the appeal. The Board is unable to consider information that was not part of the record, because the Board cannot consider new evidence on appeal. See Directive ¶ E3.1.29. The Judge’s decision was based entirely on the government’s File of Relevant Material (FORM) including Applicant’s response to the SOR. In February 2009, Applicant received a copy of the FORM and had the opportunity to submit materials to further refute, extenuate, or mitigate the information in the FORM. At that time, Applicant could have submitted any materials he thought were more current than the evidence in the FORM when he received it. Applicant did not respond to the FORM. Applicant has not demonstrated error on this issue. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. A party cannot reasonably expect a Judge’s decision to be based on evidence which was not before the Judge. The Judge’s decision is sustainable.

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Member, Appeal Board Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board