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ISCR Case 17-01992.a1 — CASE

ISCR Case 17-01992.a1unknown

Case Headnote

ISCR Case No. 17-01992.a1

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

Summary

This case involves an applicant, representing themselves, who sought eligibility for a Common Access Card (CAC) after an initial denial based on concerns about criminal conduct and dishonesty. The appeal was remanded because the Administrative Judge applied an incorrect standard for CAC eligibility. This procedural error raised due process concerns, necessitating corrective action.

The cited guidelines were considered during the review. However, the outcome of the appeal, as of the provided information, is that no final determination has been reached regarding the applicant's CAC eligibility. The case was sent back for further proceedings to address the identified procedural flaw.

Key Rule Quoted

“The application of the wrong standard raises due process concerns and warrants corrective action.”

Procedural Posture

SOR issuedNov 8, 2017
Answer filed—
Hearing heldAug 10, 2018Decision made by Administrative Judge Thomas M. Crean
Decision dateOct 29, 2018Appeal decision remanded

Cite For

Application of the Wrong Standard in CAC Eligibility Cases
Due Process Concerns in Administrative Decisions
Remand for Corrective Action Due to Improper Adjudicative Standards

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: 17-01992.a1 DATE: 10/29/2018 DATE: October 29, 2018 In Re: -------------------------

Applicant for CAC Eligibility ) ) ) ) ) ) ) ) CAC Case No. 17-01992

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 8, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–Criminal, Dishonest Conduct, or Financial Irresponsibility concerns and Material, Intentional False Statement, Deception, or Fraud 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 August 10, 2018, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Thomas M. Crean 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 security is the paramount consideration. Therefore, any doubt concerning personnel being considered for 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. 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.

ORDER

The Decision is REMANDED. Signed: Michael Ra’anan Michael 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