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ISCR 10-09936.a1: Guideline F security clearance appeal (2012) · CASE

ISCR Case 10-09936.a1unknown

Case headnote

ISCR Case No. 10-09936.a1

Feb 3, 2012· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant, representing himself, whose security clearance was challenged under Guideline F (Financial Considerations) by the Defense Office of Hearings and Appeals (DOHA). The DOHA Appeal Board determined that the applicant had made credible assertions regarding his attempts to submit additional evidence.

This evidence, which the applicant claimed was not included in the original record, was deemed relevant by the Board. Consequently, the adverse decision was remanded.

The purpose of the remand is to allow for the reconsideration of these additional documents, ensuring they are properly reviewed as part of the security clearance determination. The outcome of the security clearance decision is currently none, pending this reconsideration.

Procedural posture

SOR issuedMay 3, 2011
Answer filed—
Hearing heldOct 24, 2011record held open for 30 days
Decision dateFeb 3, 2012remanded for reconsideration

Cite for

Due Process Considerations in Evidence Submission
Remand for Reconsideration of Omitted Evidence
Credibility of Applicant's Assertions Regarding Evidence Submission

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. The Applicant argued that he was denied the opportunity to present evidence in mitigation. The Board remanded the case to allow the Judge to consider the documents that the Applicant attempted to submit, which were not included in the record. The Board found the Applicant's assertions credible and not contradicted by the record.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert E. Coacher denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

No specific harmful error alleged, raised by the applicantNot reached
Applicant asserted he was denied an opportunity to present evidence in mitigation and extenuation.

Why the Board ruled this way

The Board remanded the case for the Judge to consider additional documents that were not included in the record due to no fault of the Applicant.

On remand, the judge must

The Judge is to consider the documents that Applicant attempted to submit and then issue a new decision in accordance with the Directive.

Standard of review applied

No new evidence on appealProcedural compliance

Appeal Board panel

Michael Y. Ra’anan (Chair)
Jean E. Smallin
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: Applicant asserts, with documentary support, that he took all steps to ensure that the documents attached to his appeal brief were timely submitted to the Judge, but the documents did not make it into the record. We remand the case to the Judge to consider the documents and to issue a new decision. Adverse decision remanded. CASENO: 10-09936.a1 DATE: 02/03/2012 DATE: February 3, 2012 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-09936

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Gina L. Marine, Esq., Department Counsel FOR APPLICANT Pro se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On May 3, 2011, 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 December 14, 2011, after the hearing, Administrative Judge Robert E. Coacher denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether Applicant was denied an opportunity to present evidence in mitigation and extenuation. Consistent with the following, we remand the case to the Judge. The hearing in Applicant’s case took place on October 24, 2011. The Judge held the record open for 30 days in order to give Applicant an opportunity to present additional evidence. Applicant’s brief includes information and documents outside the record regarding his efforts to provide additional evidence. We cannot consider new evidence regarding SOR allegations, but we have, in appropriate cases, considered evidence outside the record insofar as it raises threshold issues of due process or jurisdiction. See, e.g., ISCR Case No. 08-07664 at 2 (App. Bd. Dec. 29, 2009). In this case, we have considered the representations in Applicant’s brief for the light they shed on the issue raised on appeal. Applicant asserts, and Department Counsel concurs, that he took all steps necessary to ensure that the documents attached to his appeal brief were submitted to the Judge within the allotted time, but, through no fault of his own, the documents did not make it into the record. Applicant’s assertions are not frivolous, nor are they contradicted by anything in the record. Accordingly, we conclude that the best resolution of this appeal is to remand the case to the Judge for him to consider the documents that Applicant had attempted to submit and then to issue a new decision 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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board