ISCR Case No. 22-01323

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ISCR Case No. 22-01323

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) 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

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.

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