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ISCR 11-01393.a1: Guideline F security clearance appeal (2012) · CASE

ISCR Case 11-01393.a1unknown

Case headnote

ISCR Case No. 11-01393.a1

Jul 25, 2012· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant who, representing himself, appealed the denial of his security clearance. The denial was initially based on Guideline F (Financial Considerations) and Guideline E (Personal Conduct).

During the appeal process, Department Counsel acknowledged that the Judge had made multiple erroneous findings. These errors necessitated a remand of the case for a new decision, which is to be based on the correct record.

The outcome of the security clearance decision is currently none, as the case has been sent back for reconsideration. This process highlights the importance of due process and maintaining the integrity of the industrial security program.

Key rule quoted

“In a case where the Judge makes multiple findings about an applicant which have no foundation in the record, the case must be remanded for issuance of a new decision which is based on the record.”

Procedural posture

SOR issuedAug 26, 2011
Answer filed—
Hearing heldJun 1, 2012
Decision dateJul 25, 2012

Cite for

Importance of Due Process in Security Clearance Decisions
Remand for Erroneous Findings Lacking Record Support
Integrity of the Industrial Security Program

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 was filed by the applicant after the Administrative Judge denied his request for a security clearance based on findings under Guideline F and E. The applicant contended that the Judge's findings were not supported by substantial evidence. The Board found that the Judge's erroneous findings warranted a remand for a new decision based on the record.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowThomas M. Crean denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantError sustained
The Judge made several findings of fact which have no basis in the record evidence.

Why the Board ruled this way

The Judge made multiple findings of fact that had no foundation in the record, undermining the decision and public confidence in the adjudication process.

Ignored material evidence

On remand, the judge must

The Judge must issue a new decision based on the record in Applicant’s case.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural compliance

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: In a case where the Judge makes multiple findings about an applicant which have no foundation in the record the case must be remanded for issuance of a new decision which is bases on the record. Adverse decision remanded. CASENO: 11-01393.a1 DATE: 07/25/2012 DATE: July 25, 2012 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-01393

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 August 26, 2011, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 1, 2012, after the hearing, Administrative Judge Thomas M. Crean 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’s findings of fact are based on substantial record evidence; and whether the Judge’s decision is contrary to the weight of the record evidence and, therefore, arbitrary, capricious, or contrary to law. Consistent with the following, we remand the case to the Judge for issuance of a new decision. As a threshold issue we address Applicant’s contention that the Judge made several findings of fact which have no basis in the record evidence. Specifically, Applicant contests the Judge’s findings that he is married, that his wife is in nursing school, that he (and his wife) received counseling from the church, that he has a mortgage, and that he applied for a Top Secret Clearance. Department Counsel agrees with Applicant that the aforesaid findings are erroneous. Department Counsel contends that the erroneous findings are harmless. We do not agree. The Judge refers back to several of them in his analysis. Applicant reasonably asks whether the Judge was relying on another person’s file when preparing Applicant’s decision. The Board has previously noted that one premise essential to the concept of due process is a meaningful opportunity to respond. Public confidence in the industrial security program relies in part on the appearance of a fair and impartial adjudication in light of the record as a whole. In a case where the Judge makes multiple findings about an applicant which have no foundation in the record, the Judge’s decision is undermined and so is confidence in the industrial security program. The case must be remanded for issuance of a new decision which is based on the record in Applicant’s case. See ISCR Case No. 02-23979 (App. Bd. Aug. 25, 2004); ISCR Case No. 02-07191 (App. Bd. Mar. 25, 2004); and ISCR Case No. 01-05500 (App. Bd. Apr. 15, 2003). It is premature to address the other issue raised by Applicant on appeal.

ORDER

The case is REMANDED to the Judge for issuance of a new decision consistent with the Board’s conclusions and rulings. 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