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ISCR Case 14-02730.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date6/24/2016
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 14-02730.h1) →
Participants
Applicant Representation: Pro Se
Judge: Michael Y. Ra'anan, James E. Moody, James F. Duffy
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline BForeign Influence · Against Applicant
- Guideline EPersonal Conduct · Against Applicant
- Guideline HDrug Involvement & Substance Misuse · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
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ISCR Case 14-02730.a1denied

Case Headnote

ISCR Case No. 14-02730.a1

Jun 24, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance based on concerns under Guideline H (Drug Involvement), Guideline E (Personal Conduct), and Guideline B (Foreign Influence). The applicant appealed the decision, but the Board affirmed the denial.

The Board concluded that the applicant waived his right to a hearing and failed to demonstrate any harmful error in the judge's initial decision. The applicant's appeal did not assert any factual or legal error that affected his right to present evidence.

The applicant's request for a hearing was based on his belief that he could establish credibility, which the Board found insufficient to warrant a second opportunity. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

Guideline HraisedDrug Involvement
Guideline EraisedPersonal Conduct
Guideline BraisedForeign Influence

Key Rule Quoted

“Absent a showing of factual or legal error that affects a party’s right to present evidence in the proceeding below, a party does not have the right to have a second chance at presenting his or her case before an administrative judge.”
— ISCR Case No. 02-20403 at 3 (App. Bd. Apr. 7, 2003); ISCR Case No. 03-15214 at 3 (App. Bd. Oct. 21, 2005)

Procedural Posture

SOR issuedFeb 18, 2015
Answer filed—
Hearing held—Applicant requested a decision on the written record.
Decision dateJun 24, 2016

Cite For

Waiver of Right to a Hearing Under Security Clearance Proceedings
Insufficient Basis for a Second Chance to Present a Case
Affirmation of Denial Based on Lack of Harmful Error in Prior Decision

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 who was denied a security clearance based on concerns under Guideline H, E, and B. The applicant requested a hearing but did not assert any harmful error in the administrative judge's decision. The Board affirmed the denial, concluding that the applicant waived his right to a hearing and had a reasonable opportunity to respond to the FORM.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowGregg A. Cervi — denied the clearance

Decided onthe written record

Guidelines belowGuideline HGuideline EGuideline B

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant did not assert any harmful error on the part of the Judge.

Why the Board ruled this way

The Board concluded that the Applicant waived his right to a hearing and received a reasonable opportunity to respond to the FORM. The Applicant did not demonstrate any harmful error that would warrant a second chance to present his case.

Standard of review applied

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

Appeal Board panel

Michael Ra’anan — Chair
James E. Moody
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 H; Guideline E; Guyideline B DIGEST: Considering all the circumstances, the Board concludes Applicant waived his right to a hearing and received a reasonable opportunity to respond to the FORM, including the option to present additional evidence for consideration in his case. Absent a showing of factual or legal error that affects a party’s right to present evidence in the proceeding below, a party does not have the right to have a second chance at presenting his or her case before an administrative judge. Adverse decision affirmed. CASENO: 14-02730.a1 DATE: 06/24/2016 DATE: June 24, 2016 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-02730

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 February 18, 2015, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline H (Drug Involvement), Guideline E (Personal Conduct), and Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On April 21, 2016, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Gregg A. Cervi denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant’s appeal brief contains no assertion of harmful error on the part of the Judge. Rather, it contains a request for a hearing. Applicant notes that, when he responded to the SOR, he was scheduled to be overseas for an extended period, and it would have been impractical for him to return for a hearing. He also pointed out that the Judge commented in the decision that he was unable to evaluate Applicant’s credibility and demeanor without a hearing. Applicant now believes, if he was provided an opportunity to appear before the Judge, he could establish his credibility and obtain a favorable decision. After requesting a decision on the written record, Applicant received a copy of Department Counsel’s File of Relevant Material (FORM) and was given an opportunity to respond to the FORM and submit additional matters for the Judge to consider. He submitted a response to the FORM that included a letter of recommendation from his employer. Considering all the circumstances, the Board concludes Applicant waived his right to a hearing and received a reasonable opportunity to respond to the FORM, including the option to present additional evidence for consideration in his case. Absent a showing of factual or legal error that affects a party’s right to present evidence in the proceeding below, a party does not have the right to have a second chance at presenting his or her case before an administrative judge. See, e.g., ISCR Case No. 02-20403 at 3 (App. Bd. Apr. 7, 2003); ISCR Case No. 03-15214 at 3 (App. Bd. Oct. 21, 2005). Applicant has not demonstrated error below and is not entitled to a hearing just so he can have another opportunity to present his case.

ORDER

The Decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board