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ISCR 04-00354.a1: Guideline J security clearance appeal, granted (2007) · CASE

ISCR Case 04-00354.a1granted

Case headnote

ISCR Case No. 04-00354.a1

Mar 26, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance decision involved an applicant, represented by counsel, who was initially denied a clearance under Guideline J (Criminal Conduct). The denial stemmed from concerns related to the Smith Amendment.

However, the appeal board ultimately affirmed the decision to grant the clearance. The board determined that the applicant's participation in a work-release program did not constitute "incarceration" as defined by the Smith Act.

Furthermore, the government failed to meet its burden of proof regarding the controverted facts concerning the applicant's criminal conduct. Based on these findings, the security clearance was granted.

Conditions referenced

Disqualifying

JraisedCriminal ConductThe government argued that the applicant was barred from holding a clearance under the Smith Amendment.

Key rule quoted

“Under the Directive, Department Counsel has the burden of proving controverted facts in DOHA proceedings.”

Procedural posture

SOR issuedOct 4, 2005
Answer filed—
Hearing heldJun 8, 2006
Decision dateMar 26, 2007

Cite for

Interpretation of Incarceration Under the Smith Amendment
Burden of Proof in DOHA Proceedings
Consideration of Work-release Programs in Security Clearance Cases

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 was brought by Department Counsel after the Administrative Judge granted the Applicant a security clearance despite concerns under Guideline J. The Board affirmed the decision, finding that the Department Counsel did not prove that the Applicant was barred from holding a security clearance under the Smith Amendment due to insufficient evidence regarding the nature of the work-release program.

Appealed bythe Government (Department Counsel)

Applicant representationAttorney

Judge belowRobert Robinson Gales granted the clearance

Decided ona hearing

Guidelines belowGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the Government (Department Counsel)Rejected
Department Counsel argued that the Administrative Judge's decision was arbitrary, capricious, and contrary to law for failing to hold that Applicant was barred by the Smith Amendment from holding a security clearance.

Why the Board ruled this way

The Board found that Department Counsel did not meet their burden of proving controverted facts regarding whether the work-release program should be considered incarceration under the Smith Amendment.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan (Chair)
Michael D. Hipple
Jean E. Smallin

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 J DIGEST: The question of whether a work-release program counts as incarceration is mixed question of fact and law. The Board cannot assume that the many such programs functioning concurrently in the United States necessarily impose the same restrictions on convicts. Given the limited record the Board cannot conclude that Department Counsel met their burden of proving controverted facts. Favorable decision affirmed. CASENO: 04-00354.a1 DATE: 03/26/2007 DATE: March 26, 2007 In Re: ------------ SSN: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 04-00354

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Robert E. Coacher, Esq., Department Counsel FOR APPLICANT Arvin Reingold, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On October 4, 2005, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct), of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested a hearing. On June 8, 2006, after the hearing, Chief Administrative Judge Robert Robinson Gales granted Applicant’s request for a security clearance. Department Counsel timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issue on appeal: whether the Administrative Judge’s decision was arbitrary, capricious and contrary to law for failing to hold that Applicant was barred by the Smith Amendment (10 U.S.C. § 986) from hold a security clearance. The Chief Administrative Judge did not find that Applicant was barred by the Smith Amendment from holding a security clearance because Applicant spent less than a year in jail and a state penitentiary. Applicant spent additional time in a work-release program which the Judge did not count as incarceration for purposes of Smith Act. Department Counsel challenges the Chief Judge’s decision on that basis. The Board notes that the Chief Administrative Judge highlighted the question at the hearing and left the record open for additional material on the question. Nonetheless, there are only two exhibits in the record (a security clearance application and a statement of subject prepared by Applicant) both of which were received at the hearing. Under the Directive, Department Counsel has the burden of proving controverted facts in DOHA proceedings. The question of whether work-release should be considered incarceration for purposes of the Smith Act is a mixed question of fact and law. The Board cannot assume that the many such programs functioning concurrently in the Unites States necessarily impose the same restrictions on convicts. Given the limited record evidence in this record, the Board cannot conclude that Department Counsel met their burden regarding the pertinent controverted facts. Thus, the Administrative Judge did not err in granting Applicant a clearance.

ORDER

The decision of the Administrative Judge granting Applicant a clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board