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ISCR Case 22-01323 — CASE

ISCR Case 22-01323unknown

Case Headnote

ISCR Case No. 22-01323

May 25, 2023· Hon. Moira D. Modzelewski· appeal

Summary

This case involves an applicant, representing himself, who was initially denied a security clearance based on Guideline F (Financial Considerations) and Guideline E (Personal Conduct).

The appeal board determined that the initial decision did not take into account documents submitted by the applicant. Consequently, the case was remanded for further review, specifically to ensure these previously unconsidered documents are evaluated.

As of this review, there has been no final outcome regarding the applicant's security clearance.

Procedural Posture

SOR issuedJul 20, 2022
Answer filedOct 30, 2022FORM response due
Hearing held—Decision made on written record
Decision dateMay 25, 2023Appeal decision remanded

Cite For

Remand for Consideration of Additional Evidence Not Included in the Record
Importance of Procedural Fairness in Security Clearance Decisions
Applicant's Right to Appeal After Remand for New 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

Remanded

The appeal involved a denial of security clearance based on financial considerations and personal conduct. The Applicant argued that certain documents submitted were not considered by the Judge. The Board remanded the case for the Judge to determine if these documents should be included in the record.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowBraden M. Murphy — 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 contended that documents submitted were not presented to the Judge for consideration.

Why the Board ruled this way

The Board agreed to remand the case to allow the Judge to consider additional documents submitted by the Applicant that were not included in the record.

On remand, the judge must

The Judge must reopen the record to determine whether the documents submitted on November 5, 2022, should have been entered in the record and considered.

Appeal Board panel

James F. Duffy — Chair
Moira Modzelewski
Allison Marie

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

APPEARANCES

_______________________________________________ ) In the matter of: )

)

----- )

ISCR Case No. 22-01323

)

) Applicant for Security Clearance ) _______________________________________) DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 Date: May 25, 2023

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 July 20, 2022, 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 the National Security Adjudicative Guidelines (AG) in Appendix A of Security Executive Agent 4, effective June 8, 2017, and DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On March 22, 2023, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Braden M. Murphy concluded that it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. On appeal, Applicant contends that the Judge’s decision should be remanded because matters he submitted were not presented to the Judge for consideration. We agree.

On September 22, 2022, the Government’s FORM was mailed to Applicant. On September 30, 2022, Applicant signed a document acknowledging receipt of the FORM. The FORM and its forwarding letter advised Applicant that he had 30 days from its receipt to file objections or submit any additional evidence in rebuttal, explanation, extenuation, or mitigation. His FORM response was due on October 30, 2022. On an unspecified date, Applicant submitted a response to the FORM that consists of 30 pages. Department Counsel had no objection to that response, and it is in the record. The Judge was assigned the case on December 2, 2022. Applicant’s appeal brief contains seven pages that he claims were submitted to DOHA but not entered into the record. In support of this claim, he provided a fax verification record showing that he faxed seven pages to DOHA on November 5, 2022, and he also submitted an email to DOHA on November 6, 2022, seeking confirmation of his fax’s receipt. No response to that email was provided. Even though the faxed documents in question were submitted five days after the FORM response deadline, those documents should have been presented to Department Counsel for any objections or comments and then to the Judge for a determination as to whether they would be entered into the record and considered. Based on the above, we conclude the best course of action is to remand the case to the Judge to reopen the record to determine whether the documents Applicant submitted on November 5, 2022, should have been entered in the record and considered. Directive ¶ E3.1.35 requires the Judge to issue a new decision upon remand. 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.

ORDER

The decision is REMANDED. Signed: James F. Duffy James F. Duffy Administrative Judge Chair, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board Signed: Allison Marie Allison Marie Administrative Judge Member, Appeal Board