DEFENSE OFFICE OF HEARINGS & APPEALS. Industrial Security Clearance Due Process. for NCMS DC Chapter March 12, 2008

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1 DEFENSE OFFICE OF HEARINGS & APPEALS Industrial Security Clearance Due Process for NCMS DC Chapter March 12, 2008

2 What s New: NISPOM paragraph governing handling the SF-86. Revised Adjudicative Guidelines now being used across Government to enhance reciprocity. New foreign passport policy is effective on all new adjudications and for all DoD cases in which the Statement of Reasons (SOR) was issued on or after September 1, For those cases, the new Guidelines supersede the 2000 Money Memo. 10 USC 986 has been repealed and replaced for some by an amendment to the Intelligence Reform and Terrorism Prevention Act, effective January 1, 2008.

3 Basis of Personnel Security Clearance Due Process: Green v. McElroy (1959), E.O (1960), Navy v. Egan (1988), E.O (1995), E.O (2005). Use of common Adjudicative Guidelines for Government. DOHA provides the opportunity to appear personally and to present relevant documents, materials, and information under both E.O and E.O as part of due process for all of the Department s security clearance applicants and contractors and for the industrial contractors of over 20 other Federal agencies.

4 The Opportunity to Appear Personally: Executive Order 10865, Safeguarding Classified Information Within Industry as amended January 6, 1993 guarantees the opportunity to appear personally as part of industrial security clearance due process and has been reaffirmed by: Executive Order 12829, January 6, 1993 (establishing the NISP); Executive Order 12968, Access to Classified Information, August 2, 1995 (stating that this order shall not diminish or otherwise affect the denial and revocation procedures provided to individuals covered by Executive Order No ); and most recently by Executive Order 13381, Strengthening Processes Relating to Determining Eligibility for Access to Classified National Security Information, Jun 27, 2005 (stating that nothing shall supersede, impede, or otherwise affect E.O ). Executive Order also guarantees the opportunity to appear personally and to present relevant documents and information

5 Adjudication & Due Process: Preliminary Adjudicative Process Largest portion of cases never go to due process, as adjudicators can make decision to grant clearance at earliest possible time. The adjudicators apply common Adjudicative Guidelines and may grant the clearance or either issue interrogatories (written questions) to the individual or request a further investigation, if potentially disqualifying issues are not resolved by the investigation. The adjudicator does not deny or revoke the clearance, but issues a Statement of Reasons (SOR) if unable to grant the clearance. The SOR is the start of due process. Due Process Hearings & Files of Relevant Material Required before denial, but an SOR can be withdrawn after the Answer. Appeals In the industrial security clearance process, not all cases (only between 20% to 30%) get appealed. As a result, this is very efficient as the vast majority of decisions become final after the Administrative Judge makes a decision. Either party (Government or individual) can appeal.

6 New NISPOM 2-202: Procedures for Completing the Electronic Version of the SF 86: a. The FSO or designee shall review the application solely to determine its adequacy and to ensure that necessary information has not been omitted. The FSO or designee shall provide the employee with written notification that review of the information is for adequacy and completeness, information will be used for no other purpose within the company, and that the information provided by the employee is protected by [the Privacy Act]. The FSO or designee shall not share information from the employee s SF 86 within the company and shall not use the information for any purpose other than determining the adequacy and completeness of the SF 86.

7 New NISPOM 2-202: Procedures for Completing the Electronic Version of the SF 86: b. The FSO or designee shall retain an original, signed copy of the SF86, the Authorization for Release of Information and Records, and Authorization for Release of Medical Information until the clearance process has been completed. The FSO or designee shall maintain the retained documentation in such a manner that the confidentiality of the documents is preserved and protected against access by anyone within the company other than the FSO or designee. When the applicant s eligibility for access to classified information has been granted or denied, the retained documentation shall be destroyed.

8 DOHA eligibility in JPAS: In 2005 and 2006, DOHA assisted the Department by providing assistance to two other Central Adjudication Facilities (CAFs). Accordingly, there may be situations where DOHA issues an eligibility, rather than the CAF that would normally have cognizance. DOHA assisted the Air Force CAF in 2004 and 2005 and DOHA has been providing assistance to the Defense Industrial Security Clearance Office (DISCO) since mid The existence of the DOHA eligibility does not necessarily imply that the case would normally have been referred to DOHA for adjudication, or that the file has any adverse information.

9 Preliminary Process (up to SOR): Security Questionnaire Submitted Adverse Information Report Periodic Reinvestigation Adverse Information Case Referred to DOHA Investigation of Applicant No Adverse Information Case Reviewed by Personnel Security Specialist Decision Made in Favor of Applicant Case Closed Out Favorably (Clearance Granted or Continued) Statement of Reasons (SOR) Drafted SOR Reviewed for Legal Sufficiency SOR Issued to Applicant

10 Hearing or Non-hearing Process: Statement of Reasons (SOR) Issued Answer to SOR Received Hearing Requested Yes No Case Assigned to Hearing Office File of Relevant Material (FORM) Prepared and Copy Sent to Applicant Hearing Administrative Judge Issues Written Decision Applicant s Response to FORM Received Case Assigned to Hearing Office

11 Appeal Board Process: Administrative Judge Issues Written Decision Decision Appealed? Yes No Briefing Schedule Set No Brief Received Default Entered Case Closed Brief Schedule Completed Appeal Board Issues Written Decision Appeal Withdrawn Decision Affirmed Decision Reversed Decision Remanded Case Returned to Hearing Office for Further Action

12 Revised Adjudicative Guidelines: The Revised Adjudicative Guidelines were issued December 29, On that date, Stephen J. Hadley, Assistant to the President for National Security Affairs, sent a Memorandum to J. William Leonard, Director of the Information Security Oversight Office (ISOO) stating that the President had approved the revision of the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information. The Revised Adjudicative Guidelines are effective for all new DoD cases and where the Statement of Reasons (SOR) was issued on or after September 1, 2006.

13 Foreign Passport Policy: Because the Revised Adjudicative Guidelines are effective for all DoD cases in which the SOR was issued on or after September 1, 2006, for those cases, the Revised Adjudicative Guidelines supersede the 2000 Guidance to DoD Central Adjudication Facilities (CAFs) Clarifying the Application of the Foreign Preference Adjudicative Guideline which stated that Consistent application of the guideline requires that any clearance be denied or revoked unless the applicant surrenders the foreign passport or obtains official approval for its use from the appropriate agency of the United States Government.

14 Foreign Passport Policy: Now, the relevant Mitigating Conditions under the Revised Adjudicative Guidelines read: (d) use of a foreign passport is approved by the cognizant security authority; [or] (e) The passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated.

15 A Foreign Passport Case: The second of these two Mitigating Conditions under the Revised Adjudicative Guidelines might be applied as follows in a real decision: Applicant s Australian citizenship is derived solely by his birth in Australia to Australian parents To accommodate the Revised Guidelines, Applicant has surrendered his Australian passport to his FSO, and his FSO has stated any request by the Applicant seeking return of his Australian passport would be documented by a JPAS entry explaining such action.

16 A Foreign Passport Case: By Applicant surrendering his Australian passport to his FSO, he forfeits the flexibility of unfettered and undocumented travel. Furthermore, any attempt by Applicant to retrieve his Australian passport will be documented by a JPAS entry and the U.S. Government will have knowledge of such action. These collective facts warrant application of Foreign Preference Mitigating Conditions (FP MC) 11.a.: dual citizenship is based solely on parents citizenship or birth in a foreign country; and FP MC 11.e.: the passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated.

17 10 USC 986 Repealed: 10 USC 986 was a Federal statute placing restrictions on the granting or renewal of security clearances by the Department of Defense. 10 USC 986 Applied to any DOD officer or employee, officer, director, or employee of a DOD contractor, or member of Army, Navy, Air Force, or Marine Corps falling under one or more of these provisions: (c)(1) The person has been convicted in any court of the United States of a crime was sentenced to imprisonment for a term exceeding one year and was incarcerated as a result of that sentence for not less than one year; (c)(2) The person is an unlawful user of, or is addicted to, a controlled substance (21 USC 802); (c)(3) Is mentally incompetent, as determined by a mental health professional approved by the Department of Defense; or (c)(4) Has been discharged or dismissed from the Armed Forces under dishonorable conditions.

18 2008 Amendment to IRTPA: Amendment to the Intelligence Reform and Terrorism Prevention Act (Section 3002; Public Law ; popularly known as the Bond Amendment) which is similar to 10 USC 986, but which applies to all Government agencies. Section 3002 (the Bond Amendment) prohibits all Federal agencies from granting or renewing a security clearance for any covered person who is an unlawful user of a controlled substance or is an addict under the Controlled Substances Act.

19 2008 Amendments to IRTPA (continued): Now the provisions pertaining to individuals who have been convicted of crimes and incarcerated for not less than one year, who have been discharged or dismissed from the Armed Forces under dishonorable conditions, or who are mentally incompetent as determined by a qualified mental health professional, apply only to those applicants seeking clearances that provide access to Special Access Programs (SAP), Restricted Data (RD), or Sensitive Compartmented Information (SCI). This is a significant change from 10 U.S.C This change is also effective January 1, 2008.

20 Visit the DOHA Web Site: Feel free to direct an individual with questions to the Defense Office of Hearings and Appeals web site address: This site provides information about DOHA programs and can answer many questions. All Administrative Judge and Appeal Board Decisions since 1996 are published on the DOHA website for anyone to read. In addition, you can advise any individual that they can call DOHA at either: (Arlington, Virginia) or (Columbus, Ohio) to ask about a case.