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ISCR Case 12-12051.a1 — CASE

ISCR Case 12-12051.a1denied

Case Headnote

ISCR Case No. 12-12051.a1

Apr 13, 2016· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance based on concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The appeal board affirmed this denial.

The applicant did not contest the adverse findings related to Guideline E, specifically Disqualifying Conditions AG ¶ 16 and AG ¶ 20. The board determined that any procedural errors concerning Guideline F were harmless, given the established findings against the applicant under Guideline E.

Ultimately, the applicant's security clearance was denied, with the decision primarily resting on the uncontested issues of personal conduct.

Conditions Referenced

Disqualifying

AG ¶ 16appliedPersonal Conduct
AG ¶ 20appliedFinancial Considerations

Key Rule Quoted

“There is no presumption of error below.”
— ISCR Case No. 04-08312 at 2 (July 14, 2005)

Procedural Posture

SOR issuedJun 30, 2015
Answer filed—
Hearing heldFeb 2, 2016
Decision dateApr 13, 2016

Cite For

Affirmation of Denial Based on Adverse Findings Under Guideline E
Harmless Error Doctrine Regarding Procedural Issues Under Guideline F
Lack of Presumption of Error in the Absence of Raised Issues on Appeal

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 after being denied by the DoD based on concerns under Guideline F and Guideline E. The applicant did not assert any harmful error in the appeal, and the Board affirmed the denial, noting that procedural issues related to Guideline F were harmless due to the adverse finding under Guideline E.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene D. Lokey Anderson — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant did not raise any issue regarding the adverse conclusions under Guideline E.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board affirmed the Administrative Judge's decision as the applicant did not raise any harmful error regarding the adverse conclusions under Guideline E, and any procedural errors related to Guideline F were deemed harmless due to the formal finding against the applicant under Guideline E.

Standard of review applied

No de-novo re-decisionNo new evidence on appealProcedural compliance

Appeal Board panel

Michael Ra’anan — Chair
Jeffrey D. Billett
James F. Duffy

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 does not raises any issue regarding the adverse conclusions under Guideline E. Adverse decision affirmed. CASENO: 12-12051.a1 DATE: 04/13/2016 DATE: April 13, 2016 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-12051

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 June 30, 2015, 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 February 2, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Darlene D. Lokey Anderson 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 does state that he submitted a document for consideration by the Judge before the close of the record. He then asserts that the Judge never received it. Indeed, the Judge’s decision indicates that no documents were offered by Applicant at any time while the record was open. Ordinarily, in such an event, the Board would consider Applicant’s assertions on appeal, even though they constitute new evidence, as they raise an issue of procedural due process. See, e.g., ISCR Case No. 14-06467 at 2 (App. Bd. Feb. 24, 2016). Depending on circumstances, the Board might then grant appropriate relief. However, in this case, Applicant’s assertions concern evidence that relates only to the Government’s case under Guideline F.1 This case also included an allegation under Guideline E, and the Judge made a formal finding against Applicant under that guideline. On appeal, Applicant raises no issues under Guideline E. There is no presumption of error below. See, e.g., ISCR Case No. 04-08312 at 2 (July 14, 2005). As the Judge’s adverse decision is fully supported by her formal finding under Guideline E, any procedural errors involving matters relating to Guideline F are harmless. Therefore, the decision of the Judge denying Applicant a security clearance is AFFIRMED.

Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board

FOOTNOTES

1 Applicant’s appeal brief references another document that relates only to Guideline F, which he does not claim was submitted for consideration. He also makes a factual representation concerning a Guideline F allegation. These matters would not be considered by the Board in any event, as they constitute new evidence. See Directive ¶ E3.1.29.