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ISCR Case 08-11083.a1 — CASE

ISCR Case 08-11083.a1denied

Case Headnote

ISCR Case No. 08-11083.a1

Jan 25, 2010· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance due to concerns under Guideline J (Criminal Conduct) and Guideline E (Personal Conduct). The denial stemmed primarily from the applicant's failure to respond to the File of Relevant Material (FORM), which was a critical component of the judge's initial decision.

The judge concluded that the applicant had not mitigated the raised security concerns based on the evidence available at that time. On appeal, the Board affirmed this decision, noting that it cannot consider new evidence not presented during the initial adjudication.

Ultimately, the applicant did not demonstrate any error in the judge's original decision, leading to the denial of his security clearance.

Conditions Referenced

Disqualifying

JraisedCriminal Conduct
EraisedPersonal 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 issuedJun 3, 2009
Answer filed—Applicant requested a decision on the written record.
Hearing heldNov 12, 2009Administrative Judge Mary E. Henry denied the request.
Decision dateJan 25, 2010Appeal Board affirmed the adverse decision.

Cite For

Failure to Respond to the File of Relevant Material Under Guideline E and J
Limitations on New Evidence During Appeal
Sustainability of Judge's Decision Based on Existing Record

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 J and Guideline E. The applicant argued that the Judge's decision was arbitrary and capricious, claiming the Judge lacked necessary evidence. The Board affirmed the Judge's decision, stating that it was sustainable and based on the evidence available at the time of the decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMary E. Henry — denied the clearance

Decided onthe written record

Guidelines belowGuideline JGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge did not have all the necessary evidence to make an informed decision.

Why the Board ruled this way

The Board affirmed the Judge's decision as it was based on substantial evidence and the applicant did not demonstrate any harmful error. The applicant failed to respond to the File of Relevant Material, which the Judge relied upon in making the decision.

Standard of review applied

No new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious review

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

KEYWORD: Guideline J; Guideline E DIGEST: Applicant did not respond to the File of Relevant Material. The Judge’s conclusion that he had not mitigated the security concerns is sustainable. The Board cannot consider new evidence on appeal. Adverse decision affirmed. CASENO: 08-11083.a1 DATE: 01/25/2010 DATE: January 25, 2010 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-11083

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 June 3, 2009, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct) 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 November 12, 2009, after considering 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 Judge did not have all the necessary evidence to make an informed decision. Applicant then submitted new evidence for purposes 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 July 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. The FORM and the cover letter both had language advising Applicant of his opportunity to submit additional information and documentation in response to the FORM. At that time, Applicant could have submitted any materials he thought would strengthen his case before the Judge. 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 Chairperson, 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