CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 06-24213.a1 — CASE

ISCR Case 06-24213.a1unknown

Case Headnote

ISCR Case No. 06-24213.a1

Jun 10, 2008· Hon. Jeffrey D. Billett· appeal

Summary

This security clearance case, involving an applicant representing himself, was reviewed under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The appeal board identified two disqualifying conditions: AG ¶ 15 and AG ¶ 14.

The central issue leading to the appeal was the applicant's claim that he did not receive the mandatory 15 days' notice prior to his hearing, which he argued left him unprepared to present his case effectively. The board determined that the applicant had not knowingly waived his right to this notice.

Consequently, the appeal board remanded the case for a new hearing. This decision was based on the necessity of adhering to proper procedural requirements, specifically ensuring the applicant receives adequate notice before a hearing. No final outcome on the security clearance itself has been reached.

Conditions Referenced

Disqualifying

AG ¶ 15raisedCriminal Conduct
AG ¶ 14raisedPersonal Conduct

Key Rule Quoted

“The Directive requires that an applicant be given 15 days notice of a hearing in order to properly prepare for it.”

Procedural Posture

SOR issuedJun 28, 2007
Answer filed—
Hearing heldJan 29, 2008Applicant attended despite concerns about preparedness.
Decision dateJun 10, 2008Appeal board remanded for new hearing.

Cite For

Remand for Failure to Provide Proper Notice Under Guideline E
Requirements for Waiver of Notice Under Directive
Impact of Procedural Errors on Security Clearance Decisions

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

Remanded

The appeal involved a denial of security clearance based on security concerns under Guideline J and Guideline E. The Applicant argued that he did not receive the required 15 days notice for the hearing. The Board found this to be a procedural error and remanded the case for a new hearing with proper notice.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark W. Harvey — denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline E

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant claimed the Judge erred by not giving 15 days notice of the hearing.

Why the Board ruled this way

The Board found that the Judge did not provide the required 15 days notice for the hearing, and there was no clear waiver of this requirement by the Applicant. Therefore, the case was remanded for a new hearing with proper notice.

No rational connection between facts and conclusion

On remand, the judge must

The case is to be reopened and Applicant is to be given an opportunity to have a new hearing with proper notice.

Standard of review applied

Harmful-error gatekeeperProcedural compliance

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
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, Guideline E DIGEST: The Directive requires that an applicant be given 15 days notice of a hearing in order to properly prepare for it. Applicants can waive that notice under appropriate circumstances which require a discussion of the notice provision at the hearing with a clear statement by Applicant that he is making a knowing and intelligent waiver the 15-day notice requirement. Adverse decision remanded. CASENO: 06-24213.a1 DATE: 06/10/2008 DATE: June 10, 2008 In Re: ------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-24213

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Alison P. O’Connell, Esq., Department Counsel FOR APPLICANT Pro Se Another Administrative Judge conducted a hearing on this case on November 7, 2007. However, that Judge left government service without issuing a decision. At Department Counsel’s request, the decision was made to hold another hearing with the transcript of the first hearing to be admitted as evidence.

The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 28, 2007, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested a hearing. On January 29, 2008, after the hearing, Administrative Judge Mark W. Harvey denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge erred by not giving Applicant 15 days notice of the hearing. Finding error, we remand the case to the Judge for a new hearing in accordance with the Directive. The Judge received Applicant’s case on January 17, 2008. A long series of e-mail messages ensued between the Judge, Department Counsel, and Applicant. The Judge initially suggested January 24. When that date was not acceptable to Department Counsel, the Judge and Department Counsel continued to consider other dates. Applicant asked for time to consider the effect of the prior hearing and use of the transcript from the prior hearing. (See footnote 1.) On January 22, the Judge stated that he was scheduling the hearing for January 29, although it could be canceled if not needed. On January 28, Applicant left a voice-mail message for the Judge saying that he could not attend the hearing on January 29 because he had significant training that day. The Judge sent out an e-mail to the effect that Applicant could either fail to attend the hearing on January 29, in which case Applicant would lose his clearance by default, or he could choose a date during the week of February 11-15. Applicant indicated that he had further training the week of February 11. Applicant attended the hearing on January 29. At the hearing on January 29, Applicant stated that he was not prepared for the hearing. The Judge offered to postpone the hearing until later in the day to allow Applicant time to review the record. Applicant declined the offer. The Judge also stated that he would suspend the hearing at any time if Applicant wanted to take time to study the record. Applicant did not request such a suspension. The Directive requires that an applicant be given 15 days notice of a hearing in order to properly prepare for it. Directive ¶ E3.1.8. The Board has acknowledged that applicants can waive that notice under appropriate circumstances. Those circumstances generally require a discussion of the notice provision at the hearing with a clear statement by Applicant that he is making a knowing and intelligent waiver the 15-day notice requirement. See, e.g., ISCR Case No. 05-12037 at 2-3 (App. Bd. May 10, 2007). The on-the-record discussion of waiver in the previously cited case is very different from the record in the case before us. In this case, the Judge states the following in his decision: “When the hearing began, Applicant cited his desire to attend training that day, and objected to the hearing being held that day. At the start of the hearing, he also indicated he did not believe he was prepared for the hearing.” Decision at 2. The Judge then states his offer to delay the start of the hearing for perhaps three hours or to suspend the proceedings at any time to give Applicant a chance to review the record. Id. The Judge says that “[d]uring his opening statement, Applicant expressed his appreciation for the early start on the proceeding [7:30 am], and never expressed a clear objection to going forward with the hearing without delaying it.” Decision at 2-3. The Judge then quotes an exchange between the Judge and Applicant near the end of the hearing in which Applicant says he didn’t want to miss his training and didn’t want to “keep dragging it out” and delay the Judge. Decision at 3. Nowhere in the record does Applicant state a knowing and intelligent waiver of the 15-day notice provision of the Directive ¶ E3.1.8. This is true notwithstanding a statement on page ten of the transcript where Department Counsel noted her impression that Applicant “was willing to waive his 15-day notice to allow the hearing to be held today rather than in mid-February.” The specific reference to the 15-day requirement was never commented on by the Judge, nor was Applicant asked about it at any time. Given the absence of a discussion on the record between the Judge and the parties on this issue, the Board cannot determine with certainty that Applicant clearly understood his rights under the Directive and knowingly waived them. See, e.g., ISCR Case No. 04- 12732 at 8 (App. Bd. Nov. 2, 2006). In the absence of such a waiver, the Board remands the case to the Judge with instructions that the case be reopened and that Applicant be given an opportunity to have a new hearing with proper notice.

ORDER

The decision of the Judge denying Applicant a security clearance is REMANDED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board