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ISCR 06-02669.a1: Guideline J security clearance appeal, denied (2007) · CASE

ISCR Case 06-02669.a1denied

Case headnote

ISCR Case No. 06-02669.a1

May 7, 2007· Hon. Jean E. Smallin· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline J (Criminal Conduct). The denial was based on security concerns related to criminal conduct.

The applicant appealed the decision, requesting a waiver of 10 U.S.C. § 986. However, the Appeal Board affirmed the denial, stating that granting such a waiver was outside its authority. The Board also noted that it could not consider new evidence on appeal, nor did the applicant allege any harmful error committed by the Administrative Judge in the initial decision.

Consequently, the Appeal Board upheld the Administrative Judge's decision to deny the security clearance.

Conditions referenced

Disqualifying

JraisedCriminal Conduct

Key rule quoted

“The Appeal Board does not have authority to grant waivers of 10 U.S.C. § 986.”

Procedural posture

SOR issuedJun 22, 2006
Answer filed—
Hearing heldNov 17, 2006decided on the written record
Decision dateMay 7, 2007

Cite for

Authority Limitations of the Appeal Board Regarding Waivers Under 10 U.S.C. § 986
The Requirement for Alleging Harmful Error for Appeal
The Denial of Security Clearance Based on Criminal Conduct Under Guideline J.

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 applicant appealed the denial of a security clearance based on security concerns under Guideline J. The Appeal Board affirmed the denial, stating that the applicant did not allege any harmful error and that it lacked authority to grant waivers or consider new evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJacqueline T. Williams denied the clearance

Decided onthe written record

Guidelines belowGuideline J

What the Board reviewed

No specific harmful error alleged, raised by the applicantRejected
The applicant did not allege any specific harmful error.

Why the Board ruled this way

The Appeal Board affirmed the Administrative Judge's decision because the applicant did not allege any harmful error, and the Board lacks authority to grant waivers or consider new evidence on appeal.

Standard of review applied

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

Appeal Board panel

Jean E. Smallin
William S. Fields
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 J DIGEST: The Appeal Board does not have authority to grant waivers under §10 USC 986. Adverse decision affirmed. CASENO: 06-02669.a1 DATE: 05/07/2007 DATE: May 7, 2007 In Re: --------- SSN: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-02669

APPEAL BOARD SUMMARY DISPOSITION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 22, 2006, DOHA issued a statement of reasons (SOR) 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 the case be decided on the written record. On November 17, 2006, after considering the Only the Director, DOHA or his designee has the authority to grant waivers in meritorious case. See “Implementation of Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (Dec. 29, 2005).” There is no provision for waiver recommendations by Judges or others. See DOHA Operating Instruction 64, as revised, Sept. 12, 2006 (“. . . the Administrative Judge shall not opine whether a waiver of 10 U.S.C. 986 is merited, nor recommend whether to consider the case for a waiver of 10 U.S.C. 986"). record, 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. On appeal, Applicant requests that he be granted a waiver of 10 U.S.C. § 986 by the Director, and presents new evidence in the form of an additional statement citing facts supportive of his request.

The Appeal Board does not have authority to grant waivers of 10 U.S.C. § 986. See, e.g., ISCR Case No. 04-11041 at 2-3 (App. Bd. Sept. 29, 2006). Nor does it have the authority to consider new evidence on appeal. See Directive ¶ E3.1.29. The Appeal Board’s authority to review a case is limited to cases in which the appealing party has alleged the Judge committed harmful error. Applicant has not made an allegation of harmful error. Therefore, the decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board