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ISCR 09-03760.a1: Guideline F security clearance appeal (2010) · CASE

ISCR Case 09-03760.a1unknown

Case headnote

ISCR Case No. 09-03760.a1

Jul 16, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant, represented by counsel, whose security clearance was challenged under Guideline F, Financial Considerations. The DOHA Appeal Board reviewed an adverse decision concerning the applicant's eligibility.

The Board determined that essential government exhibits were missing from the record, which prevented a proper appellate review of the decision. Consequently, the DOHA Appeal Board remanded the case.

The purpose of the remand was to reconstruct the record by locating and including the missing exhibits. This reconstruction is required before the appeal can proceed further. No final outcome on the applicant's security clearance has been reached.

Procedural posture

SOR issuedNov 3, 2009
Answer filed—
Hearing heldMay 18, 2010
Decision dateJul 16, 2010

Cite for

Remand Due to Absence of Key Government Exhibits
Issues Regarding Judge's Consideration of Evidence
Reconstruction of Record for Appellate Review

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 a security clearance based on financial considerations under Guideline F. The applicant argued that the judge failed to consider favorable evidence and mis-weighed the record. The Board remanded the case due to the absence of key government exhibits necessary for review.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRobert Robinson Gales denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

No specific harmful error alleged, raised by the applicantNot reached
The record does not contain government exhibits 1-7.

Why the Board ruled this way

The record was incomplete as it did not contain Government Exhibits 1-7, preventing proper appellate review.

On remand, the judge must

Reconstruct the record in consultation with the parties and return the case file to the Board for processing of Applicant’s appeal.

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 F DIGEST: The record does not contain government exhibits 1-7. Adverse decision remanded. CASENO: 09-03760.a1 DATE: 07/16/2010 DATE: July 16, 2010 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-03760

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Barry W. Rorex, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On November 3, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 18, 2010, after the hearing, Administrative Judge Robert Robinson Gales denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge failed to consider record evidence favorable to Applicant; whether the Judge mis-weighed the record; and whether the Judge erred in his conclusion that Applicant had not mitigated the security concerns in this case. Consistent with the following discussion, we remand the case. As a preliminary issue, we note that the record does not contain Government Exhibits 1-7, the documents submitted by Department Counsel and admitted at the hearing. Tr. at 13. Without a complete record we cannot perform appellate review. Accordingly, we remand the case to the Judge for the purpose of reconstructing the record in consultation with the parties. Upon completion of that task, the case file should be returned to the Board for processing of Applicant’s appeal in accordance with the Directive.

ORDER

The Judge’s adverse security clearance decision is REMANDED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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