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ISCR 09-03114.a1: Guideline B security clearance appeal (2010) · CASE

ISCR Case 09-03114.a1unknown

Case headnote

ISCR Case No. 09-03114.a1

Aug 26, 2010· Hon. Jeffrey D. Billett· appeal

Summary

This security clearance case involved an applicant representing himself, with concerns raised under Guideline B (Foreign Influence) and Guideline F (Financial Considerations). The applicant was appealing an adverse decision made by a Judge.

However, the Defense Office of Hearings and Appeals (DOHA) Board was unable to conduct a proper appellate review. This was due to the absence of crucial exhibits from both the Government and the applicant's submissions.

Consequently, the Board remanded the case for further proceedings, and no final outcome on the security clearance was reached at this stage.

Procedural posture

SOR issuedSep 22, 2009
Answer filed—
Hearing heldJun 15, 2010
Decision dateAug 26, 2010Board remanded for record reconstruction.

Cite for

Remand Due to Incomplete Record Preventing Appellate Review
Issues Regarding Family Ties in Syria Under Guideline B
Adverse Decision Remanded for Reconstruction of the 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

Remanded

The appeal involved a denial of a security clearance based on concerns under Guideline B and Guideline F. The Board found that the case file was missing critical exhibits, preventing a proper review. Consequently, the Board remanded the case for record reconstruction.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline F

What the Board reviewed

Erroneous finding of fact, raised by the applicantNot reached
The Judge erred by finding that Applicant had four siblings residing in Syria.
Decision arbitrary, capricious, or contrary to law, raised by the applicantNot reached
The Judge’s adverse security clearance decision was arbitrary, capricious, and contrary to law.

Why the Board ruled this way

The Board remanded the case due to the absence of a complete record, which prevented appellate review.

On remand, the judge must

The Judge must reconstruct the record in consultation with the parties and include all relevant exhibits.

Appeal Board panel

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

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 B; Guideline F DIGEST: Board cannot address issues on appeal because file is missing both Government and Applicant exhibits. The Board remands to the case to the Judge to produce a complete record. Adverse decision remanded. CASENO: 09-03114.a1 DATE: 08/26/2010 DATE: August 26, 2010 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-03114

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 22, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline B (Foreign Influence) and Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 15, 2010, after the hearing, Administrative Judge Marc E. Curry denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issues on appeal: (1) whether the Judge erred by finding that Applicant had four siblings residing in Syria; and (2) whether the Judge’s adverse security clearance decision was arbitrary, capricious, and contrary to law. Consistent with the following discussion, we remand the case. As a preliminary issue, we note that the case file does not contain Government Exhibits 1-7, the documents submitted by Department Counsel and admitted at the hearing. Tr. at p. 8. Additionally, the case file does not contain Applicant’s Exhibits A through K, which were submitted by Applicant and admitted at the hearing. Tr. at p. 11. In addition, the Board notes that the parties and the Judge discussed 12 “Court Exhibits.” Tr. at pp. 22-27. Without a complete record we cannot perform appellate review. Accordingly, we remand the case to the Judge for the purpose of reconstructing the record in consultation with the parties. Inasmuch as Applicant’s appeal brief could be construed as raising an issue concerning the admissibility of an excluded document, that document needs to be included in the record as well. Upon completion of record reconstruction, the case file should be returned to the Board for processing of Applicant’s appeal in accordance with the Directive.

ORDER

The Judge’s adverse security clearance decision is REMANDED. 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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board