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ISCR Case 11-07169.a1 — CASE

ISCR Case 11-07169.a1denied

Case Headnote

ISCR Case No. 11-07169.a1

Nov 18, 2013· Hon. Jeffrey D. Billett· appeal

Summary

An applicant representing herself was denied a security clearance under Guideline F (Financial Considerations). The denial stemmed from the applicant's failure to provide sufficient evidence that she had submitted a response to the File of Relevant Material, which was a key part of her case.

The appeal board affirmed the denial, concluding that even if the documents in question had been submitted, they would not likely have altered the original outcome. Furthermore, the applicant did not demonstrate any harmful errors made by the judge during the initial proceedings.

The decision to deny the clearance was based on the applicant's inability to substantiate her claims regarding the submission of crucial documentation and the board's assessment that the missing information would not have changed the final determination.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Key Rule Quoted

“Our authority to review a case is limited to those in which the appealing party has alleged the Judge committed harmful error.”

Procedural Posture

SOR issuedDec 3, 2012
Answer filed—
Hearing heldAug 29, 2013Decision issued by Administrative Judge Philip S. Howe
Decision dateNov 18, 2013Appeal decision affirmed by the Appeal Board

Cite For

Insufficient Evidence to Support Claims Regarding Submission of Documents
Affirmation of Adverse Decisions When No Harmful Error Is Demonstrated
Limitations on the Appeal Process Regarding New Evidence

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 financial considerations under Guideline F. The applicant argued that she had submitted a response to the File of Relevant Material, but the Board found no evidence to support this claim and determined that even if the documents had been submitted, they would not have changed the outcome. The Board affirmed the Administrative Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPhilip S. Howe — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant did not raise an issue of harmful error.

Why the Board ruled this way

The Board found that the applicant did not present sufficient evidence to support her claims regarding the submission of documents and did not raise any harmful error. Therefore, the Administrative Judge's decision was affirmed.

Standard of review applied

No de-novo re-decisionNo new evidence on appealHarmful-error gatekeeper

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
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 F DIGEST: Applicant failed to present evidence sufficient to raise a reasonable belief that she had submitted a response to the File of Relevant Material. Even if she had submitted the documents in question, they would not likely have affected the outcome of the case. Otherwise, she did not raise an issue of harmful error. Adverse decision affirmed. CASE NO: 11-07169.a1 DATE: 11/18/2013 DATE: November 18, 2013 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-07169

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On December 3, 2012, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On August 29, 2013, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Philip S. Howe denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant’s brief asserts matters not contained in the record. We are not authorized to consider new evidence on appeal. Directive ¶ E3.1.29. However, in appropriate cases we have considered matters outside the record insofar as they bear upon threshold issues such as due process. See, e.g., ISCR Case No. 12-07667 at 2 (App. Bd. Mar. 11, 2013). We have remanded cases to Judges in order for them to consider evidence that, through no fault of the applicants, did not make it into the record. See, e.g., ISCR Case No. 12-01038 at 2 (App. Bd. Mar. 22, 2013). In the case before us, Applicant states that she submitted a response to the File of Relevant Material (FORM), but the documents were not included in the record. She has attached the documents she claims to have submitted, speculating that they “may have been misplaced.” Appeal Brief at 1. In a Reply Brief, the Chief Department Counsel argues that Applicant has not made a proffer sufficient to support a reasonable inference that she actually submitted a response to the FORM. We note that Applicant has submitted under separate cover an e-mail communication between two officials of the Government agency where she performs her duties and that could be interpreted to mean that Applicant had made a response. However, it is ambiguous and is not accompanied by an explanation from Applicant herself. Compare with ISCR Case No. 06-07320 at 2 (App. Bd. Jul. 25, 2007), in which the record contained affirmative evidence permitting a reasonable inference that the applicant submitted a reply to the FORM. In fact, Applicant’s contention is substantially undermined by the fact that several of the documents she claims to have submitted actually post-date the Judge’s decision. Moreover, we find persuasive the Chief Department Counsel’s argument that even if the documents in question had been submitted to the Judge it is unlikely that there would have been a different outcome. See, e.g., ISCR Case No. 05-04482 at 2 (App. Bd. May 21, 2007). Otherwise, Applicant does not raise an issue of harmful error by the Judge. We do not review a case de novo. Our authority to review a case is limited to those in which the appealing party has alleged the Judge committed harmful error. See Directive ¶ E3.1.32. See also ISCR Case No. 10-06703 at 2 (App. Bd. May 4, 2012). Therefore, the Decision of the Judge 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board