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ISCR 11-05217.a1: Guideline E security clearance appeal (2012) · CASE

ISCR Case 11-05217.a1unknown

Case headnote

ISCR Case No. 11-05217.a1

May 4, 2012· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant, representing himself, whose security clearance faced concerns under Guideline E (Personal Conduct) due to admitted allegations. The applicant provided detailed explanations in response to the Statement of Reasons (SOR).

However, the appeal board determined that the judge failed to adequately consider these explanations during the initial review. Consequently, the adverse decision was remanded for reevaluation, meaning the case will be sent back for a new assessment of the evidence.

As of this review, there is no final outcome regarding the applicant's security clearance.

Procedural posture

SOR issuedJul 28, 2011
Answer filed—
Hearing heldFeb 22, 2012
Decision dateMay 4, 2012Appeal board remanded the case.

Cite for

Failure to Consider Applicant's Explanations in Response to SOR
Remand for Reevaluation of Adverse Decision
Presumption That Judge Considered All Evidence Rebutted

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 Guideline E. The Applicant argued that the Judge failed to consider his explanations for the admitted allegations. The Board agreed and remanded the case for a new decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRoger C. Wesley denied the clearance

Decided ona hearing

Guidelines belowGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantError sustained
The Judge did not consider all of the record evidence, specifically the Applicant's explanations included in the SOR response.

Why the Board ruled this way

The Board found that the Judge's statement indicated he did not consider the Applicant's explanations, which constitutes a harmful error. The case is remanded for a new decision.

Ignored material evidence

On remand, the judge must

The Judge must issue a new decision considering all of the record evidence, including the Applicant's explanations in the SOR response.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Y. Ra’anan (Chair)
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 E DIGEST: The Judge’s decision states that Applicant’s response to the SOR contain admissions but no explanations. The presumption that the Judge considered all the evidence is rebutted with regard to Applicant’s explanations included in the SOR response. Adverse decision remanded. CASENO: 11-05217.a1 DATE: 05/04/2012 DATE: May 4, 2012 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-05217

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 July 28, 2011, DOHA issued a statement of reasons (SOR) 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 a hearing. On February 22, 2012, after the hearing, Administrative Judge Roger C. Wesley denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. As a threshold issue, we note Applicant’s contention in his appeal brief that the Judge did not consider all of the record evidence. Applicant included a copy of his response to the SOR, in which he admitted the allegations and provided detailed explanations for his conduct. However, in his Summary of Pleadings, the Judge stated the following: “In his response to the SOR, Applicant admitted each of the allegations. He provided no explanations.” Decision at 2. A Judge is presumed to have considered all of the record evidence. See, e.g., ISCR Case No. 11-03025 at 3 (App. Bd. Jan. 6, 2012). However, in this case, the Judge’s comment raises in a reasonable mind the belief that the Judge did not consider Applicant’s explanations included in the SOR response. Accordingly, Applicant has rebutted the presumption that the Judge considered all of the record evidence. We remand the case to the Judge for a new decision, after which the case will be processed 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board