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A decided public DOHA case, shown for research, not advice or a prediction.

ISCR Case No. 11-06804.a1

Appeal Board

Decided Aug 30, 2012 · Administrative Judge Jean E. Smallin · Appeal

Case headnote

Summary

The applicant, representing himself, sought a security clearance but was denied based on concerns under Guideline J (Criminal Conduct) and Guideline E (Personal Conduct). The appeal was denied as the applicant did not allege any harmful error by the Administrative Judge, and the Board affirmed the denial without considering new evidence.

Why the applicant was denied

  • The applicant did not assert harmful error on the part of the Administrative Judge.
  • The Board cannot consider new evidence on appeal.
  • The Board's authority is limited to cases where harmful error is alleged.

Conditions referenced

Disqualifying

  • J Criminal Conductraised
  • E Personal Conductraised

Key rule quoted

“The Board may not consider new evidence on appeal.”
Directive ¶ E3.1.29

Procedural posture

SOR issued
2012-02-03
Answer filed
Hearing held
2012-06-26 Applicant requested decision on written record.
Decision date
2012-08-30

Cite for

  • Limitations on Appeal Regarding New Evidence
  • Requirements for Alleging Harmful Error
  • Affirmation of Denial Based on Lack of Harmful Error Assertion

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

The appeal involved an applicant seeking a security clearance who was denied based on security concerns under Guideline J and Guideline E. The applicant did not assert any harmful error in the Judge's decision. The Board affirmed the denial of the security clearance.

Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.

Full decision

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The complete official text, footnotes and signatures included, is in the original PDF.

Decision text, by section

Synopsis

KEYWORD: Guideline J; Guideline E DIGEST: The Board may not consider new evidence on appeal. The Board’s authority is limited to cases in which the appealing party has alleged the Judge committed harmful error. Adverse decision affirmed. CASE NO: 11-06804.a1 DATE: 08/30/2012 DATE: August 30, 2012 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-06804

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 February 3, 2012, DOHA issued a statement of reasons (SOR) 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 that the case be decided on the written record. On June 26, 2012, after the close of the record, Administrative Judge Elizabeth M. Matchinski denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant’s appeal brief makes no assertion of harmful error on the part of the Judge. He makes a number of comments concerning the written record and offers them as an explanation for his conduct. He also states that in the course of his employment he does not come into direct contact with classified information. Some of these representations are not contained in the record below.

The Board may not consider new evidence on appeal. See Directive ¶ E3.1.29. Additionally, the Board’s authority to review a case is limited to cases in which the appealing party has alleged the Judge committed harmful error. See Directive ¶ E3.1.32. The Board does not review cases de novo. Therefore, the decision of the Judge denying Applicant a security clearance is AFFIRMED.

Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board