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ISCR 11-12627.a1: Guideline F security clearance appeal (2013) · CASE

ISCR Case 11-12627.a1unknown

Case headnote

ISCR Case No. 11-12627.a1

Sep 18, 2013· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant, representing himself, who faced the denial of a security clearance based on Guideline F, Financial Considerations. The initial denial stemmed from financial concerns, specifically Disqualifying Condition AG ¶ 20.

However, the case was remanded for further processing. This decision was made because a document referenced in the proceedings was not included in the official record. This omission raised questions regarding whether the judge had fully considered all relevant evidence during the initial review.

Consequently, there is no final outcome on the security clearance decision at this stage, as the case requires additional processing to ensure all evidence is properly considered.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Procedural posture

SOR issuedMar 6, 2013
Answer filed—
Hearing heldJun 27, 2013
Decision dateSep 18, 2013Case remanded for further processing.

Cite for

Issues Regarding the Consideration of Evidence in Security Clearance Cases
Remand Procedures When Evidence Is Missing From the Record
Financial Concerns Under Guideline F Leading to Security Clearance Denial

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 was filed by the applicant after the Administrative Judge denied a security clearance based on financial considerations. The applicant argued that the Judge did not consider all evidence and that the decision was arbitrary and capricious. The Board remanded the case for further processing to include a missing character reference document in the record.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRoger C. Wesley denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantError sustained
The Judge's adverse decision was arbitrary, capricious, or contrary to law.
Judge mis-weighed or ignored evidence, raised by the applicantError sustained
The Judge did not consider all of the evidence, specifically a character reference document.

Why the Board ruled this way

The Board found that the Judge did not include a character reference document in the record, which was essential for a fair consideration of the evidence.

Missing findings

On remand, the judge must

The Judge must include the character reference document in the record and reconsider the decision.

Standard of review applied

Harmful-error gatekeeperNo de-novo re-decisionNo new evidence on appealProcedural compliance

Appeal Board panel

Michael Y. Ra’anan (Chair)
Jean E. Smallin
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 cited to a document at the beginning of the hearing, and Department Counsel advised that she would forward an electronic copy of it to the Judge for inclusion in the record. However, the document is not included among Applicant’s exhibits. The best resolution of this matter is to remand the case to the Judge for further processing. Adverse decision remanded. CASE NO: 11-12627.a1 DATE: 09/18/2013 DATE: September 18, 2013 In Re: ------------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-12627

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 March 6, 2013, 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 hearing. On June 27, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) 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. Applicant raised the following issues on appeal: whether the Judge considered all of the evidence and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we remand the case to the Judge. Applicant has presented matters from outside the record, the gist of which is that he provided a document to the Judge that was not incorporated into the record. As a general rule, we cannot consider new evidence on appeal. Directive ¶ E3.1.29. However, in the past we have considered new evidence insofar as it raises questions of due process or jurisdiction. See, e.g., ISCR Case No. 12-01038 (App. Bd. Mar. 22, 2013). In the case before us, Applicant has attached to his brief a copy of a character reference submitted by a co-worker. He cited to this document at the beginning of the hearing, and Department Counsel advised that she would forward an electronic copy of it to the Judge for inclusion in the record. Tr. at 22, 27, 92. However, this document is not included among Applicant’s exhibits. In the Decision, the Judge stated that Applicant had submitted only one character reference, although the exhibit in question here would have been the second. We conclude that the best resolution of this matter is to remand the case to the Judge for further processing. Other issues raised by Applicant’s appeal brief are not ripe for our consideration.

ORDER

The case is REMANDED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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