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ISCR Case No. 03-22427

Appeal Board

Decided Sep 21, 2006 · Administrative Judge Jean E. Smallin · Appeal

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The appeal involved a denial of a security clearance based on criminal conduct under Guideline J. The applicant argued that the Administrative Judge erred by not making a recommendation for waiver under 10 U.S.C. § 986(d). The Board affirmed the decision, stating that neither the Judge nor the Board has the authority to make such a recommendation.

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Appeal Board Decision

eptember 21, 2006

<HR>

In Re:

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SSN:-------------

Applicant for Security Clearance

<HR>

ISCR Case No. 03-22427

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT

Peregrine D. Russell-Hunter, Chief Department Counsel

FOR APPLICANT

Pro Se

The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 24, 2004, DOHA issued a statement of

reasons advising Applicant of the basis for that decision--security concerns raised under Guideline J (Criminal Conduct) of Department of Defense Directive

5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On March 14, 2006, after the hearing, Administrative Judge Philip S. Howe

denied Applicant's request for a security clearance.<A HREF="#N_1_"> (1)</A> Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.

Applicant raised the following issue on appeal: whether the Administrative Judge erred by not making an official recommendation as to whether Applicant's

case should be considered for waiver under the provisions of 10 U.S.C. § 986(d).

In this case, the Administrative Judge found that the security concerns raised by Applicant's criminal conduct had been mitigated, but that Applicant could not

be granted a security clearance because of 10 U.S.C. § 986. In his decision, the Administrative Judge stated he "would have recommended further

consideration of the case for a waiver of 10 U.S.C. § 986," but he was not at liberty to disregard the Appeal Board's holding that Administrative Judges have no

authority at the present time to make any recommendation, favorable or unfavorable, concerning waiver under section 986(d).

Applicant argues that the Administrative Judge's adverse decision should be reversed and that the Board should make a formal recommendation for waiver of

the application of 10 U.S.C. § 986 for Applicant. The Board does not find this argument persuasive. Based on our recent discussion of this issue in ISCR Case

No. 01-20970 at 3 (App. Bd. April 18, 2006), the Board concludes that neither the Judge nor the Board has authority at this time to make a formal

recommendation of waiver. Accordingly, the Board concludes that Applicant has not demonstrated error.

<CENTER>Order</CENTER>

The decision of the Administrative Judge denying Applicant a clearance is AFFIRMED.

<SPAN ST

Appearances

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SSN:-------------

Applicant for Security Clearance

<HR>

ISCR Case No. 03-22427

APPEAL BOARD DECISION

APPEARANCES

<P STY

Order

e. Based on our recent discussion of this issue in ISCR Case

No. 01-20970 at 3 (App. Bd. April 18, 2006