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ISCR Case 17-01458.a1 — CASE

ISCR Case 17-01458.a1unknown

Case Headnote

ISCR Case No. 17-01458.a1

unknownOct 29, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant, representing themselves, who was denied eligibility for a Common Access Card (CAC) by the Department of Defense. The denial stemmed from concerns regarding the applicant's criminal or dishonest conduct, leading to an appeal.

The appeal was remanded because the Administrative Judge applied an incorrect standard when evaluating the applicant's eligibility for the CAC. This misapplication of standards raised due process concerns, necessitating further action.

Consequently, the case will be returned for correction. A new decision will be rendered, ensuring it is consistent with the appropriate standards for CAC eligibility. The outcome of this new decision is pending.

Key Rule Quoted

“The determination will be unfavorable . . . when there is a reasonable basis to conclude that derogatory information or conduct relating to the . . . CAC credentialing standards presents an unacceptable risk for the U.S. Government.”
— Instruction, Encl. 4 ¶ 4.

Procedural Posture

SOR issuedNov 9, 2017
Answer filed—Applicant requested a decision on the written record.
Hearing heldJun 28, 2018Decision made by Administrative Judge Matthew E. Malone.
Decision dateOct 29, 2018Appeal remanded.

Cite For

Application of the Wrong Standard in CAC Eligibility Cases
Due Process Concerns in Security Determinations
Remand for Correction of Adjudicative Errors

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

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: CAC DIGEST: The application of the wrong standard raises due process concerns and warrants corrective action. Adverse decision remanded. CASENO: 17-01458.a1 DATE: 10/29/2018 DATE: October 29, 2018 In Re: -----------------------

Applicant for CAC Eligibility ) ) ) ) ) ) ) ) CAC Case No. 17-01458

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant eligibility for Common Access Card (CAC) credentialing. On November 9, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–Criminal or Dishonest Conduct concerns, raised under the adjudicative standards in the appendices of DoD Instruction 5200.46 (Sep. 9, 2014) (Instruction). Applicant requested a decision on the written record. On June 28, 2018, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Matthew E. Malone denied Applicant’s request for CAC eligibility. Applicant appealed pursuant to Instruction, Enclosure 4 ¶ 6. In analyzing the concerns in Applicant’s case, the Judge applied the wrong standard. Both in the Policies section of the Decision as well as in the Conclusion, the Judge cited to the “clearly consistent with the national interest” standard required for security clearance determinations.1 Also, the Policies section contains the following language: “In all adjudications, the protection of the national interest is the paramount consideration. Therefore, any doubt concerning an applicant’s CAC eligibility should be resolved in favor of the national interest.” In a CAC case, however, the appropriate standard is whether the applicant’s conduct poses an “unacceptable risk.”2 The application of the wrong standard raises due process concerns and warrants corrective action. Given these circumstances, the best resolution is to remand the case to the Judge for correction of the identified error and issuance of a new decision consistent with the requirements of the Instruction.

ORDER

The Decision is REMANDED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board

FOOTNOTES

1 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

2 “[T]he overriding factor . . . is unacceptable risk.” Instruction, Encl. 4 ¶ 1(b). “The determination will be unfavorable . . . when there is a reasonable basis to conclude that derogatory information or conduct relating to the . . . CAC credentialing standards presents an unacceptable risk for the U.S. Government.” Id. at ¶ 4.