Recent Decisions by DOHA Judges and Appeal Board Clarify Security Clearance Appeals Process

A number of recent decisions by the Defense Office of Hearings and Appeals (DOHA) have provided insight into the appeals procedures used in certain types of personnel security investigations.

DOHA is responsible for reviewing unfavorable decisions made in security clearance investigations and reinvestigations for military personnel, federal civilian employees and government contractors employed by a number of agencies.

Some of the decisions below were made by Administrative Judges, as well as a three judge Appeal Board which serves as a final appeals board reviewing DOHA decisions pertaining to government contractors. These cases mentioned below serve to illustrate that appeals from adverse security clearance decisions can, in some instances, result in the granting or continuance of a security clearance.

Many times when a clearance has been denied or revoked, a DOHA Administrative Judge will grant or reinstate the clearance if the individuals can show that they have mitigated the conduct that lead to the initial denial or revocation. This is true even in cases where illegal drug use was the cause for the denial or revocation.

In a 2008, an Administrative Judge granted a clearance to an Applicant who was originally denied a security clearance because he had used marijuana in high school and had also bought and sold that illegal drug.^[1] Furthermore, in 2004 the Applicant had tested positive for marijuana use at his job and in 2005 the applicant had been arrested for driving with possession of four ounces of marijuana and intent to distribute.^[2]

The Administrative Judge stated that the applicant had mitigated the security concern by abstaining from drug use for three years, changing his circle of friends, and by getting married and having two children.^[3] According to Judge, under paragraph 26(a) of the Adjudicative Guidelines, the disqualifying condition may be mitigated where the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment.^[4]

The Administrative Judge went on to state that an Applicant’s eligibility for a security clearance must be considered in light of the totality of the Applicant’s conduct and all the circumstances. This is referred to as the whole person standard.^[5]

While conduct may be deemed mitigated at a DOHA hearing before the Appeal Board, new evidence may not be considered on the appeal.^[6] A recent DOHA Appeal Board decision addressed this issue when an Applicant attempted to introduce new evidence to counter the fact that the Applicant still has delinquent debts. Moreover, the Board found that its submission does not constitute error on the part of the Administrative Judge.^[7]

Furthermore, cases that come before a DOHA Appeal Board are not reviewed de novo. If an applicant fails to make an allegation of harmful error then the decision of the Judge denying an Applicant a trustworthiness designation will be affirmed.^[8] This was the case in a hearing before an Appeal Board recently where an applicant was denied a trustworthiness designation based on concerns raised under Guideline G (Alcohol Consumption) and Guideline E (Personal Conduct).^[9]

As illustrated by the aforementioned cases clearances may be granted when the conduct serving as the basis for an initial denial or revocation has been mitigated. Thus, Applicants who have been denied or have had their clearances revoked in some cases may have recourse through DOHA. To determine whether recourse is available individuals should retain experienced counsel knowledgeable about the laws and procedures governing access to sensitive national security information.

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[1] Defense Office of Hearings and Appeals, ISCR Case No. 07-09751.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Defense Office of Hearings and Appeals, ADP Case No. 00-0131.
[7] Id.
[8] Defense Office of Hearings and Appeals, ADP Case No. 06-25938.
[9] Id.