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ISCR Case 12-02407.a1 — CASE

ISCR Case 12-02407.a1denied

Case Headnote

ISCR Case No. 12-02407.a1

Aug 15, 2013· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline E (Personal Conduct). The denial was based on the applicant's failure to present sufficient evidence to mitigate concerns raised under Disqualifying Condition E2.

Specifically, the applicant did not formally request a polygraph during his hearing, despite later claiming that a polygraph would have supported his case. The appeal board affirmed the denial, noting that the applicant failed to demonstrate any harmful error in the judge's initial decision. The board emphasized the applicant's responsibility to provide such evidence, which he did not fulfill.

Consequently, the security clearance was denied due to the applicant's inability to adequately address the personal conduct concerns and demonstrate procedural error in the initial determination.

Conditions Referenced

Disqualifying

E2raisedPersonal Conduct

Key Rule Quoted

“The applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel.”
— Directive ¶ E3.1.15.

Procedural Posture

SOR issuedOct 12, 2012
Answer filed—
Hearing heldJun 11, 2013
Decision dateAug 15, 2013

Cite For

Responsibility of the Applicant to Present Evidence in Security Clearance Cases
Requirements for Asserting Harmful Error on Appeal
The Role of Polygraph Evidence in Security Clearance Hearings

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 was from a denial of a security clearance based on Guideline E concerns. The applicant argued that he could pass a polygraph but did not formally request to take one. The Board affirmed the AJ's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran — denied the clearance

Decided ona hearing

Guidelines belowGuideline E

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant suggested he could pass a polygraph but did not request the opportunity to take one.

Why the Board ruled this way

The Board affirmed the AJ's decision as the applicant did not allege any harmful error and failed to request a polygraph examination during the hearing.

Standard of review applied

Harmful-error gatekeeperNo de-novo re-decisionProcedural compliance

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
William S. Fields

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: Applicant’s intermittent suggestions at the hearing that he could pass a polygraph did not obligate the Judge to act nor is is the Judge inaction indicative of error. Adverse decision affirmed. CASENO: 12-02407.a1 DATE: 08/15/2013 DATE: August 15, 2013 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-02407

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 October 12, 2012, DoD 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). Department Counsel requested a hearing. On June 11, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Edward W. Loughran 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 states the following: “. . . when I had a hearing with Judge Edward W. Loughran, I offered to take a polygraph to proof my innocent [sic], but I did not have that chance. That polygraph could make the different [sic] on my outcome of my judgment.” The record indicates that Applicant mentioned his willingness to submit to a polygraph on three occasions during the hearing.1 At no time, however, did he make a specific request of the Judge for an opportunity to take a polygraph. To the extent Applicant’s brief can be construed as an assertion that the Judge should have afforded Applicant access to a polygraph, or given him the opportunity to proffer polygraph evidence, he has failed to demonstrate error. Applicant did not make any request of the Judge regarding a polygraph, nor did he ask the Judge to rule or otherwise comment upon his stated willingness to submit to a polygraph. The applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision. See Directive ¶ E3.1.15. Accordingly, it was incumbent on Applicant to obtain and present evidence he believed would aid his cause. To the extent Applicant believed that a polygraph examination would assist his case, it was his responsibility to obtain one. Applicant’s intermittent suggestions at the hearing that he could pass a polygraph did not obligate the Judge to act, nor is the Judge’s inaction indicative of error. Although pro se applicants cannot be expected to act like lawyers, they are expected to take timely, reasonable steps to protect their rights. See, e.g., ISCR Case No. 08-12061 at 2 (App. Bd. Dec. 15, 2009). Had he desired an opportunity to submit polygraph evidence, it was incumbent upon Applicant to so state clearly and unambiguously. The Appeal 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. The decision of the Judge denying Applicant a security clearance 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board

FOOTNOTES

1 Tr. at 20, 31-32, and 62.