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ISCR Case 03-17601.a1 — CASE

ISCR Case 03-17601.a1denied

Case Headnote

ISCR Case No. 03-17601.a1

Mar 16, 2007· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial was based on specific disqualifying conditions E2.A2.1 and J1.

The applicant's arguments regarding delays in the decision process and potential promotions were found insufficient to overturn the denial. The adjudicator determined that the applicant failed to demonstrate any harmful error in how the case was processed. Claims of prejudice due to processing delays were considered speculative and not central to the purpose of the hearing.

Ultimately, the applicant did not establish a basis for relief, reinforcing the principle that no individual has an inherent right to a security clearance. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

E2.A2.1raisedPersonal Conduct
J1raisedCriminal Conduct

Key Rule Quoted

“Without a showing of identifiable prejudice to the appealing party, delay in the processing of a case does not warrant a finding of error.”
— ISCR Case No. 04-06517 at 3 (Oct. 21, 2005); ISCR Case No. 03-10880 at 4 (June 24, 2005); ISCR Case No. 02-32581 at 3 (June 9, 2005); ISCR Case No. 03-20005 at 3 (May 17, 2005).

Procedural Posture

SOR issuedNov 5, 2004
Answer filed—
Hearing heldJun 16, 2006
Decision dateMar 16, 2007

Cite For

Denial Based on Personal Conduct and Criminal Conduct Under Guidelines E and J
Insufficient Claims of Prejudice Due to Delays in Decision-making
No Entitlement to a Security Clearance Regardless of Potential Promotions

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

Affirmed

The appeal involved a denial of a security clearance based on security concerns under Guideline E and Guideline J. The applicant argued that a delay in the issuance of the decision was arbitrary and caused him harm. The Board affirmed the Administrative Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJacqueline T. Williams — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed that the delay in the issuance of the Administrative Judge's decision was arbitrary, capricious, and contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Administrative Judge's decision and affirmed the denial of the security clearance.

Standard of review applied

No de-novo re-decisionNo new evidence on appealHarmful-error gatekeeper

Appeal Board panel

Jeffrey D. Billett
Jean E. Smallin
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 E; Guideline J DIGEST: Without a showing of identifiable prejudice to the appealing party, delay in the processing of a case does not warrant a finding of error. No one has a right to a security clearance. Adverse decision affirmed. CASENO: 03-17601.a1 DATE: 03/16/2007 DATE: March 16, 2007 In Re: -------- SSN: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 03-17061

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Ray T. Blank, Jr., Esq. Department Counsel FOR APPLICANT Richard Murray, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On November 5, 2004, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct), of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested a hearing. On June 16, 2006, after the hearing, Administrative Judge Jacqueline T. Williams denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the delay of approximately one year between the hearing on Applicant’s case and the issuance of the Administrative Judge’s decision, which caused a subsequent delay in Applicant’s ability to reapply for a security clearance, is arbitrary, capricious, and contrary to law. Applicant claims that he has been harmed by the delay in the issuance of the Administrative Judge’s security clearance decision because if he had a clearance he would have been eligible for a promotion which would increase his pay by $500 per month. He notes that an applicant can reapply for a clearance one year after an adverse decision is issued. In Applicant’s case, the hearing was held on June 7, 2005. Therefore, if the adverse decision in his case had been issued in what Applicant considers a timely manner, in the summer of 2005, he could have reapplied for a security clearance one year later, in the summer of 2006. Since the decision was issued on June 16, 2006, Applicant cannot reapply until June 2007. Applicant requests that the Appeal Board issue a nunc pro tunc order amending the date of the Administrative Judge’s order to August 16, 2005, and award further relief as the Board deems appropriate. Applicant cites no authority in support of the requested relief. The Board has no supervisory authority over Hearing Office Judges and no basis to assume how large an individual Judge’s caseload may be. There is no basis in the record to conclude that the Judge processed Applicant’s case in a way that would constitute error. Without a showing of identifiable prejudice to the appealing party, delay in the processing of a case does not warrant a finding of error. See, e.g., ISCR Case No. 04-06517 at 3 (Oct. 21, 2005); ISCR Case No. 03-10880 at 4 (June 24, 2005); ISCR Case No. 02-32581 at 3 (June 9, 2005); ISCR Case No. 03-20005 at 3 (May 17, 2005). While Applicant claims to have been harmed by the delay in the issuance of a security clearance decision, the harm he cites—his failure to be promoted and a delay in his ability to reapply for a security clearance—is ancillary to the purposes of a DOHA hearing. In any event, information about Applicant’s job which was not introduced at the hearing also constitutes new evidence, which the Board cannot consider on appeal. See Directive, ¶ E3.1.29. Moreover, since no one has a right to a security clearance, the outcome of any subsequent security clearance application Applicant might submit is speculative. Concerning our authority to modify the date of the Administrative Judge’s decision, we are limited in the remedies which we may award. In cases in which a Judge has committed harmful error, we may reverse the Judge’s decision or remand the case to the Judge for further consideration. These are the only remedies which the Directive makes available to us. Harmful error may occur in the following ways: if (1) the Judge’s findings of fact are not based upon substantial evidence; (2) the Judge failed to adhere to procedures required by the Executive Order or the Directive; and/or (3) the Judge’s decision is arbitrary, capricious, or contrary to law. Directive ¶ E3.1.33. In this case, Applicant has not established, or even claimed, harmful error as defined by the Directive. Therefore, Applicant has not met his burden of showing that the case should be reversed or remanded. Having failed in his burden, Applicant is not entitled to relief.

ORDER

The Administrative Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board