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ISCR 14-04491.a1: Guideline E security clearance appeal (2016) · CASE

ISCR Case 14-04491.a1unknown

Case headnote

ISCR Case No. 14-04491.a1

Apr 15, 2016· Hon. Jeffrey D. Billett· appeal

Summary

This security clearance case involved an applicant representing himself, facing denial under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The initial decision raised disqualifying conditions related to personal conduct.

However, the appeal process revealed that the Judge had not considered all evidence submitted by the applicant. Specifically, mitigating conditions under Guideline F, pertaining to financial considerations, were not fully evaluated.

Due to this oversight, the case was remanded for further proceedings. The purpose of the remand is to ensure a comprehensive review of all the applicant's submitted documents, particularly those addressing financial considerations, before a final determination on the security clearance can be made. No final outcome has been reached at this stage.

Conditions referenced

Disqualifying

AG EraisedPersonal Conduct

Mitigating

AG FappliedFinancial ConsiderationsThe applicant provided evidence of resolution of debts.

Key rule quoted

“Applicant has made a prima facie case that some of his evidence was not passed on to the Judge.”

Procedural posture

SOR issuedMar 26, 2015
Answer filed—
Hearing heldFeb 11, 2016
Decision dateApr 15, 2016Appeal resulted in remand.

Cite for

Due Process Considerations in Security Clearance Cases
Remand for Consideration of Additional Evidence
Impact of Financial Resolution on Clearance Decisions

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 considerations and personal conduct. The Applicant argued that evidence was not included in the record and that the Judge's decision was arbitrary. The Board remanded the case for the Judge to consider the missing evidence and issue a new decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowClaude R. Heiny denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantError sustained
Applicant asserted that some of his evidence was not passed on to the Judge.
Decision arbitrary, capricious, or contrary to law, raised by the applicantNot reached
Applicant argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that some of the Applicant's evidence was not considered by the Judge, warranting a remand for further review.

Ignored material evidence

On remand, the judge must

The Judge must consider the documents that Applicant has attached to his brief and then issue a new Decision in accordance with the Directive.

Standard of review applied

Harmful-error gatekeeperNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Y. 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: Guiodeline F DIGEST: Applicant has made a prima facie case that some of his evidence was not passed on to the Judge. Adverse decision remanded. CASENO: 14-04491.a1 DATE: 04/15/2016 DATE: April 15, 2016 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-04491

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 26, 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 11, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Claude R. Heiny denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30 Applicant raises the following issues on appeal: whether he submitted documents that did not make it into the record 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 raised an issue of due process. In doing so, he asserts matters from outside the record, which we generally cannot consider. Directive ¶ E3.1.29. However, we will consider new evidence insofar as it bears upon threshold issues such as due process. See, e.g., ISCR Case No. 14-00812 at 2 (App. Bd. Jul. 8, 2015). The Judge held the record open after the hearing to enable Applicant to submit additional evidence to him through Department Counsel. Tr. at 54. On August 20, 2015, Department Counsel advised Applicant to send “the documents you would like to submit attached to a reply to this email.” The record contains copies of three emails with attachments that were sent to Department Counsel on August 21 and on August 31 by an official acting on behalf of Applicant. Department Counsel forwarded post-hearing documents to the Judge on January 15, 2016. These documents were admitted as Applicant Exhibits B through E. Decision at 2. Applicant asserts that his representative sent other exhibits that were not included in the record. He has attached to his Appeal Brief documents that he contends were the exhibits his representative transmitted to Department Counsel but that were not presented to the Judge. They purport to show resolution of most of the SOR debts. Department Counsel has not submitted a Reply Brief addressing this issue. We conclude that Applicant has made a prima facie showing that some of his evidence was not passed on to the Judge and, therefore, was not considered. We conclude that the best resolution is to remand the case to the Judge to consider the documents that Applicant has attached to his brief and then to issue a new Decision in accordance with the Directive. The other issue raised by Applicant is not ripe for consideration.

ORDER

The case is REMANDED. 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board