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ISCR Case 06-19803.a1 — CASE

ISCR Case 06-19803.a1denied

Case Headnote

ISCR Case No. 06-19803.a1

Aug 24, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline J (Criminal Conduct) due to a disqualifying conviction. The applicant had been convicted of a crime and sentenced to imprisonment for over one year, which rendered him ineligible for a clearance under 10 U.S.C. § 986.

The Appeal Board affirmed the denial, noting that it lacked the authority to grant waivers for statutory disqualifications. The Board found no harmful error in the judge's initial decision to deny the clearance based on the applicant's criminal conduct and the mandatory bar imposed by federal statute.

Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

J1raisedCriminal Conduct

Key Rule Quoted

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

Procedural Posture

SOR issuedSep 29, 2006
Answer filed—
Hearing heldMar 15, 2007
Decision dateAug 24, 2007

Cite For

Authority of the Appeal Board Regarding Waivers of 10 U.S.C. § 986
Impact of Criminal Convictions on Security Clearance Eligibility
Limitations of the Appeal Board's Review Authority in the Absence of Harmful Error Allegations.

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 Board reviewed the denial of a security clearance to the Applicant based on criminal conduct under Guideline J. The Applicant appealed, requesting a waiver of 10 U.S.C. §986, but did not allege any harmful error. The Board affirmed the Administrative Judge's decision, noting it does not have the authority to grant such waivers and referred the case for further consideration.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowClaude R. Heiny — denied the clearance

Decided ona hearing

Guidelines belowGuideline J

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant did not allege any specific harmful error.

Why the Board ruled this way

The Board affirmed the Administrative Judge's decision as the Applicant did not allege any harmful error, and the Board lacks authority to grant waivers of 10 U.S.C. §986.

Standard of review applied

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

Appeal Board panel

Michael Y. Ra’anan — Chair
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 of 10 U.S.C. §986. 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. CASENO: 06-19803.a1 DATE: 08/24/2007 DATE: August 24, 2007 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-19803

APPEAL BOARD DECISION

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 September 29, 2006, 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. 10 U.S.C. 986 (c) prevents the Department of Defense from granting or renewing a clearance to anyone who “. . . has been convicted in any court of the United States of a crime, was sentenced to imprisonment for a term exceeding one year, and was incarcerated as a result of that sentence for not less than one year.” Only the Director, DOHA, or his designee has the authority to grant waivers in meritorious cases. See Memorandum from Under Secretary of Defense for Intelligence dated August 30, 2006, regarding “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, Sep. 12, 2006 (“ . . . the Administrative Judge shall not opine whether a wavier of 10 U.S.C. 986 is merited, nor recommend whether to consider the case for a waiver of 10 U.S.C. 986.”) On March 15, 2007, after the hearing, Administrative Judge Claude R. Heiny denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. On appeal, Applicant requests that he be granted a waiver of 10 U.S.C. 986 (The Smith Act) by the Director based upon the record in his case. 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. Sep. 29, 2006). 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. 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.

ORDER

The Judge adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, 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