A decided public DOHA case, shown for research, not advice or a prediction.
ISCR Case No. 06-02669.a1
Appeal BoardDecided May 7, 2007 · Administrative Judge Jean E. Smallin · Appeal
Case headnote
Summary
The applicant, representing himself, sought a security clearance under Guideline J (Criminal Conduct) but was denied due to security concerns. The Appeal Board affirmed the denial, stating it lacked authority to grant waivers or consider new evidence on appeal, as the applicant did not allege any harmful error by the Administrative Judge.
Why the applicant was denied
- The applicant's request for a waiver of 10 U.S.C. § 986 was not within the authority of the Appeal Board.
- The applicant did not allege any harmful error by the Administrative Judge.
Conditions referenced
Disqualifying
- J Criminal Conductraised
Key rule quoted
“The Appeal Board does not have authority to grant waivers of 10 U.S.C. § 986.”
Procedural posture
- SOR issued
- 2006-06-22
- Answer filed
- Hearing held
- 2006-11-17 decided on the written record
- Decision date
- 2007-05-07
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
The appeal involved an applicant seeking a security clearance who was denied based on security concerns under Guideline J (Criminal Conduct). The applicant appealed, requesting a waiver of 10 U.S.C. § 986 and presented new evidence. The Appeal Board affirmed the denial, stating it lacked authority to grant waivers and that the applicant did not allege harmful error.
Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.
Full decision
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Decision text, by section
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
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