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ISCR 20-00914: Guideline E security clearance appeal (2022) · CASE

ISCR Case 20-00914unknown

Case headnote

ISCR Case No. 20-00914

Sep 27, 2022· Hon. Moira D. Modzelewski· appeal

Summary

This security clearance case involved an applicant representing himself, facing concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The judge ruled in the applicant's favor regarding Guideline E, but found against him on Guideline F.

Under Guideline F, the applicant had multiple delinquent debts, including child support obligations. While the applicant presented some information, he failed to provide sufficient documentary evidence to demonstrate the resolution of these debts.

Consequently, the case was remanded for further consideration. This allows for the submission of new evidence concerning the applicant's debts and potential requests for additional hearings to address the outstanding financial concerns. No final clearance decision has been reached.

Conditions referenced

Disqualifying

F3raisedInability or Unwillingness to Satisfy Debts
F2raisedDelinquent Debts

Mitigating

F3rejectedThe Conditions That Led to the Financial Difficulties Were Temporary and Have Been ResolvedThe applicant did not provide sufficient evidence to demonstrate financial responsibility.
F2rejectedThe Applicant Has Made Good Faith Efforts to Resolve DebtsThe applicant failed to submit documentary evidence of debt-resolution efforts.

Key rule quoted

“The Appeal Board is generally prohibited from considering new evidence.”
Directive ¶ E3.1.29.

Procedural posture

SOR issuedJul 31, 2020
Answer filed—Applicant requested a decision on the written record.
Hearing held—Applicant did not request a hearing.
Decision dateSep 27, 2022Decision remanded for further consideration.

Cite for

Remand for Consideration of New Evidence Regarding Financial Debts
Evaluation of Due Process in Security Clearance Cases
Impact of Insufficient Documentary Evidence on Financial Responsibility Claims

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 he submitted documents to support his claims, which were not included in the record. The Board remanded the case to allow the Judge to consider these documents and clarify whether a hearing was requested.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEric H. Borgstrom denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline EGuideline F

What the Board reviewed

No specific harmful error alleged, raised by the applicantNot reached
Applicant asserted that he submitted documents for the Judge's consideration that were not included in the record.

Why the Board ruled this way

The Board found that the Applicant made a credible proffer that documents were submitted to DOHA that were not forwarded to Department Counsel for inclusion in the FORM submitted to the Judge. The Government had no objection to remanding the case for further consideration of these documents.

Other

On remand, the judge must

The Judge shall determine whether Applicant requested a hearing or intended to request a hearing, and to reopen the record to provide Applicant an opportunity to re-submit the documents that should have been presented to the Judge.

Standard of review applied

No new evidence on appealProcedural compliance

Appeal Board panel

James F. Duffy (Chair)
Jennifer I. Goldstein
Moira Modzelewski

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

_______________________________________________ ) In the matter of: )

)

----- )

ISCR Case No. 20-00914

)

) Applicant for Security Clearance ) _______________________________________)

Date: September 27, 2022 APPEAL BOARD DECISION AND REMAND ORDER 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 July 31, 2020, 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 August 11, 2022, after consideration of the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Eric H. Borgstrom found for Applicant on the Guideline E allegations, found against Applicant on the Guideline F allegations, and denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The Judge’s favorable findings under Guideline E are not in issue on appeal.

Under Guideline F, the SOR alleged that Applicant had two delinquent child support accounts and three other delinquent debts. In responding to the SOR, Applicant denied one allegation and admitted the other four, asserting that he had paid two of the admitted accounts. He did not include any documentary evidence to support his claims of resolution or dispute. On March 25, 2022, Department Counsel submitted a file of relevant material (FORM) to Applicant for his review and response. The Judge noted that Applicant did not submit a response to the FORM and concluded that “[a]bsent documentary evidence of any debt-resolution efforts or other evidence demonstrating his financial responsibility, none of the mitigating conditions apply.” Decision at 7. On appeal, Applicant asserts that he submitted five documents for the Judge’s consideration, to include receipts and pay stubs showing payments. In support of that issue, Applicant’s brief contains an email chain in which he discussed his case with a DOHA administrative staff member and forwarded two attachments for consideration by the Judge. We also note this email chain reflects that Applicant stated, “If possible i’d (sic) like to speak with you [the administrative staff member] prior to the hearing[,]” which raises the issue whether Applicant requested a hearing or intended to request a hearing. This latter issue should have been appropriately addressed and resolved before the FORM was sent to the Judge for a decision on the written record. The Appeal Board is generally prohibited from considering new evidence. Directive ¶ E3.1.29. However, we may consider new evidence insofar as it bears upon questions of due process or jurisdiction. See, e.g., ISCR Case No. 17-01472 at 2 (App. Bd. Aug. 6, 2018). The email chain attached to Applicant’s brief confirms the communications on May 16, 2022, which was a timely response to the FORM. As such, Applicant has made a credible proffer that documents were submitted to DOHA that were, for unknown reasons, not forwarded to Department Counsel for inclusion in the FORM submitted to the Judge. In his reply brief, Chief Department Counsel indicates the Government has no objection to remanding this case for the Judge to consider the documents that were submitted. Based on the above, we conclude the best course of action is to remand the case to the Judge to determine whether Applicant requested a hearing or intended to request a hearing, and to reopen the record to provide Applicant an opportunity to re-submit the documents that should have been presented to the Judge. As provided in Directive ¶ E3.1.35, the Judge shall, upon remand, issue a new decision in the case. The Board retains no continuing jurisdiction over a remanded decision. However, a decision issued after remand may be appealed pursuant to Directive ¶¶ E3.1.28. to E3.1.35. See Directive ¶ E3.1.35.

Order The Decision is REMANDED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: Jennifer I. Goldstein Jennifer I. Goldstein Administrative Judge Member, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board