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ISCR 12-02827.a1: Guideline E security clearance appeal (2014) · CASE

ISCR Case 12-02827.a1unknown

Case headnote

ISCR Case No. 12-02827.a1

May 8, 2014· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance case involved an applicant representing himself, facing denial under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The primary concerns stemmed from unaddressed financial issues, specifically citing Disqualifying Conditions AG ¶ 20 and AG ¶ 15.

During the initial process, the Judge did not consider additional documents submitted by the applicant after the hearing. This procedural oversight became a central point of the appeal.

As a result, the appeal did not lead to a final decision on the clearance. Instead, the case was remanded for further processing, requiring the original decision-maker to consider the previously unreviewed documents.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Procedural posture

SOR issuedAug 28, 2013
Answer filed—
Hearing heldJan 24, 2014
Decision dateMay 8, 2014Remanded for further processing.

Cite for

Procedural Issues Regarding the Handling of Evidence
Impact of Additional Documents Submitted Post-hearing
Remand for Further Processing Due to Due Process Concerns

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 financial and personal conduct concerns. The Applicant argued that the Judge's decision was arbitrary and capricious due to the failure to consider additional documents submitted after the hearing. The Board remanded the case for further processing to consider the additional evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowThomas M. Crean denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantError sustained
The Judge's decision was arbitrary, capricious, or contrary to law due to the failure to consider additional documents submitted by the Applicant.

Why the Board ruled this way

The Board found that the Judge did not consider additional evidence submitted by the Applicant, which was acknowledged by Department Counsel but not forwarded to the Judge, constituting a harmful error.

Ignored material evidence

On remand, the judge must

The Judge must consider the additional documents submitted by the Applicant that were not forwarded to him by Department Counsel.

Standard of review applied

Harmful-error gatekeeperProcedural compliance

Appeal Board panel

Michael 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; Guideline E DIGEST: Applicant submitted documents before the close of the record which were received by Department Counsel but not timely forwarded to the Judge. Adverse decision remanded. CASENO: 12-02827.a1 DATE: 05/08/2014 DATE: May 8, 2014 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-02827

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 August 28, 2013, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On January 24, 2014, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Thomas M. Crean denied Applicant’s request for a security clearance. Applicant appealed, pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board remands the case to the Judge. The Board notes a threshold issue raised by Applicant. In his brief he makes the representation that he submitted evidentiary matters after the hearing that were not considered by the Judge. As such, Applicant has made representations from outside the record. As a general rule, the Board cannot consider new evidence on appeal. Directive ¶ E3.1.29. However, in the past, the Board has considered new evidence or assertions outside the record insofar as it raises questions of due process or jurisdiction. See, e.g., ISCR Case No. 12-01038 at 1-2 (App. Bd. Mar 22, 2013). At the hearing, Applicant submitted, and the Judge accepted into evidence Applicant Exhibit A. During the hearing, Applicant indicated his desire for the record to be kept open to enable him to submit documents after the hearing. The Judge left the record open for Applicant to submit additional documents. After the hearing, Applicant submitted, and the Judge acknowledged and considered, additional documents, marked Applicant’s Exhibits B through F. However, Applicant also submitted other documents in addition to the ones acknowledged by the Judge, which were not considered. The Judge stated in his decision that Applicant had failed to provide documents pertaining to tax payment plans or bankruptcy records. This information was contained in the additional documents submitted by Applicant. Department Counsel acknowledges that this evidence was received by them but was not forwarded to the Judge. Given these circumstances, the Board concludes that the best course of action 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 decision of the Judge is REMANDED. Signed; Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffery D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed; James E. Moody James E. Moody Administrative Judge Member, Appeal Board