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ISCR Case 14-06467.a1 — CASE

ISCR Case 14-06467.a1unknown

Case Headnote

ISCR Case No. 14-06467.a1

Feb 24, 2016· Hon. Jeffrey D. Billett· appeal

Summary

This security clearance case involved an applicant representing himself, with concerns raised under Guideline E (Personal Conduct) and Guideline F (Financial Considerations).

The appeal board identified a due process issue: the applicant presented a prima facie case that certain documents were missing and had not been considered during the initial decision-making process.

Consequently, the board remanded the case for further processing. No final outcome regarding the applicant's security clearance was reached at this stage.

Key Rule Quoted

“We conclude that Applicant’s assertions are sufficient to raise a prima facie case that he submitted documents in response to the FORM that did not arrive at DOHA or were not sent to the Judge.”

Procedural Posture

SOR issued2015-02-00
Answer filed—
Hearing heldDec 24, 2015
Decision dateFeb 24, 2016Remanded for further processing.

Cite For

Due Process Considerations in Security Clearance Cases
Prima Facie Case Regarding Missing Documents
Remand for Further Processing in ISCR Appeals

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 an applicant who was denied a security clearance based on financial considerations and personal conduct. The applicant argued that he submitted documents that were not included in the record and that the Judge's decision was arbitrary and capricious. The Board remanded the case for further processing due to the potential due process issue regarding the missing documents.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJames F. Duffy — denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline E

What the Board reviewed

No specific harmful error alleged — raised by the applicantNot reached
Applicant asserted that he submitted documentary evidence that was not included in the record.
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 Applicant raised a prima facie case regarding the submission of documents that were not included in the record, necessitating further processing by the Judge.

On remand, the judge must

Remand the case to the Judge for further processing consistent with the Directive.

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: We conclude that Applicant’s assertions are sufficient to raise a prima facie case that he submitted documents in response to the FORM that did not arrive at DOHA or were not sent to the Judge. We cannot resolve this issue based upon the facts before us. We conclude that the best resolution is to remand the case to the Judge for further processing consistent with the Directive. Adverse decision remanded. CASENO: 14-06467.a1 DATE: 02/24/2016 DATE: February 24, 2016 In Re: --------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-06467

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. In February 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 decision on the written record. On December 24, 2015, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge James F. Duffy denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether Applicant submitted documentary evidence that was not included in the record and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline E are not at issue in this appeal. Consistent with the following, we remand the case to the Judge. Applicant asserts that he previously submitted documents in response to the File of Relevant Material (FORM). We note that these documents–a letter from Applicant discussing his financial circumstances and a letter from an attorney addressing a proposed bankruptcy action–are not found in the record. Applicant’s assertions on appeal constitute new evidence, which we are generally prohibited from considering. 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). Under the facts of this case, we conclude that Applicant’s assertions are sufficient to raise a prima facie case that he submitted documents in response to the FORM that either did not arrive at DOHA or were not sent to the Judge. We cannot resolve this issue based upon the facts before us. Accordingly, we conclude that the best resolution of this case is to remand it to the Judge for further processing consistent with the Directive. See ISCR Case No. 12-07667 at 2-3 (App. Bd. Mar. 11, 2013).

ORDER

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