ISCR Case No. 06-16810.a1

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline J DIGEST: The Appeal Board does not have authority to grant waivers of 10 USC §986. Adverse decision affirmed. CASENO: 06-16810.a1 DATE: 07/19/2007 DATE: July 19, 2007 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-16810

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 August 31, 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 Applicant also argues that the Judge’s adverse Formal Finding as to SOR ¶ 1.a was factual or legal error. The Board has reviewed the Judge’s decision as a whole and concludes that the Judge considered Applicant’s conduct mitigated under the relevant mitigating conditions and whole person factors, but that Applicant was disqualified from having a security clearance by application of 10 U.S.C. § 986 based upon the facts alleged in SOR ¶ 1.b. Accordingly, the Board need not address that issue. Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On January 31, 2007, 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. The Appeal Board construes Applicant’s brief as requesting that he be granted a waiver of 10 U.S.C. § 986. 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). Only the Director, DOHA or his designee has the authority to grant waivers in meritorious cases. 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"). 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. The Board will refer Applicant's case to the Director DOHA for further consideration pursuant to the Under Secretary of Defense Memorandum dated August 30, 2006. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board