CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 14-05240.a1 — CASE

ISCR Case 14-05240.a1denied

Case Headnote

ISCR Case No. 14-05240.a1

Aug 4, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct). The denial was based on disqualifying conditions outlined in Adjudicative Guidelines Paragraphs 24 and 25.

The Appeal Board affirmed the denial, noting that the applicant failed to assert any harmful error by the judge in the initial decision. Furthermore, the applicant did not utilize the opportunity to present evidence during a hearing, which could have addressed the raised concerns.

The Board also stated that new evidence submitted by the applicant after the initial decision could not be considered during the appeal process. Ultimately, the applicant's failure to demonstrate any harmful error by the judge led to the affirmation of the security clearance denial.

Conditions Referenced

Disqualifying

AG ¶ 25raisedCriminal Conduct
AG ¶ 24raisedDrug Involvement

Key Rule Quoted

“The Board does not review a case de novo and it cannot consider new evidence on appeal.”
— Directive ¶ E3.1.29

Procedural Posture

SOR issuedMay 18, 2015
Answer filed—
Hearing held—Applicant requested decision on the written record.
Decision dateAug 4, 2016

Cite For

Affirmation of Denial Based on Lack of Harmful Error Assertion
Limitations on New Evidence Consideration in Appeals
Importance of Utilizing Hearing Opportunities in Security Clearance Cases

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· Summary disposition

Affirmed

The appeal was filed by the applicant after the denial of a security clearance based on concerns under Guideline H and Guideline J. The applicant did not assert any harmful error in the Administrative Judge's decision, leading the Board to affirm the denial.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran — denied the clearance

Decided onthe written record

Guidelines belowGuideline HGuideline J

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
The applicant did not assert any harmful error on the part of the Judge.

Why the Board ruled this way

The applicant did not allege any harmful error by the Administrative Judge, and the Board affirmed the decision based on the lack of such allegations and the procedural limitations on new evidence and oral arguments.

Appeal Board panel

Michael Y. Ra’anan — Chair
James F. Duffy
William S. Fields

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 H; Guideline J DIGEST: The Directive does not authorize the Appeal Board to hold oral arguments. Adverse decision affirmed. CASENO: 14-05240.a1 DATE: 08/04/2016 DATE: August 4, 2016 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-05240

APPEAL BOARD SUMMARY DISPOSITION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On May 18, 2015, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On May 25, 2016, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant’s appeal brief contains no assertion of harmful error on the part of the Judge. Specifically, he states that he is “not saying the evidence of [his] past was false or that the process was flawed, but that there is more then what was presented.” Appeal Brief at 1. In support of his argument, he offers new evidence in the form a narrative statement about his current work and family situation, as well as documents such as character reference letters and an award nomination, that postdate the Judge’s decision in this case. He also requests that he be “granted an appeal to present his case in person.” Id. Applicant had the opportunity to elect a hearing. Instead, he requested that his case be decided on the written record and filed a documentary response to the government’s File of Relevant Material (FORM). Nothing in the record below indicates that Applicant was effectively precluded from presenting evidence on his own behalf, and his failure to take better advantage of his rights under the Directive does not constitute a denial of those rights. See, e.g., ISCR Case No. 01-20579 at 3 (App. Bd. Apr. 14, 2004). The Appeal Board’s authority is derived from the Directive, which does not authorize it to hold oral arguments. See, e.g., ISCR Case No. 09-01321 at 2 (App. Bd. Feb. 17, 2010). The Board does not review a case de novo and it cannot consider new evidence on appeal. See Directive ¶ E3.1.29. Its 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 on the part of the Judge. Therefore, the decision of the Judge is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James F. Duffy

James F. Duffy Administrative Judge Member, Appeal Board Signed; William S. Fields William S. Fields Administrative Judge Member, Appeal Board