defense office of hearings appeals update to: northern virginia isac 23 september 2008

1. DEFENSE OFFICE OF HEARINGS & APPEALS Update to:Northern VirginiaISAC23 September 2008

3. Basis of Personnel SecurityClearance Due Process: Green v. McElroy (1959), E.O. 10865 (1960), Navy v. Egan (1988), E.O. 12968 (1995), E.O. 13381 (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. 10865 and E.O. 12968 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 provides “the opportunity to appear personally and to present relevant documents … and information” (stating “this order shall not diminish or otherwise affect … the denial and revocation procedures provided to individuals covered by Executive Order No. 10865”); Executive Order 13467 (which replaced Executive Order 13381), “Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility for Access to Classified National Security Information,” Jun 30, 2008 (states that “Nothing in this order shall … diminish or otherwise affect the denial and revocation procedures provided to individuals covered by Executive Order 10865 of February 20, 1960, as amended.”).

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. NISPOM 2-202: 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. NISPOM 2-202: 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: Where DOHA issues an eligibility, there should be no assumption that there are any issues which should affect reciprocity. The existence of the DOHA eligibility does not necessarily imply that the case was referred to DOHA for adjudication due to disqualifying adverse information.

9. Adjudication: A personnel security investigation is reviewed for investigative scope and adverse information. In some instances, the case will require additional information to resolve issues. This may require returning the case to OPM for further investigation or the use of interrogatories (questions to the Subject of the investigation) to resolve the concern. The adjudicative guidelines are then applied. If the adverse information can be mitigated under the guidelines the case is closed favorably and clearance eligibility is entered in JPAS. If it cannot, the individual is issued a Statement of Reasons and due process begins.

10. Overall Timeliness: Now the 2004 Intelligence Reform and Terrorism Prevention Act requires: By December 2006, 80% of clearances processed in average of 120 days By December 2009, 90% of clearances processed in average of 60 days

11. Overall Timeliness: 2008 Security Clearance Oversight Group Report to Congress stated that by September 2008: Agencies will complete 90% of the initial security clearances, end-to-end, in an average of 105[1] days. - 90% of initial investigations within an average of 65 days. - 90% of initial adjudications within an average of 25 days. Agencies will complete 90% of their TS reinvestigations, end-to-end, within an average of 195 days. - 90% of investigations within an average of 150 days. - 90% of adjudications within an average of 30 days. [1] The sum of the targeted investigation and adjudication time, plus 14 days for the initial transmission of the application.

12. Adjudication Timeliness: From January 2007 to the present, DOHA has had no backlog. It closed more cases than it received from DISCO during this period, even when it had to use overtime to do so. Over the past year, DOHA’s monthly average is about 24 days for favorable adjudications.

13. Adjudication Timeliness: From January 1, 2007 to January 31, 2008, DOHA adjudicated and closed 23,158 cases, (more than received) for an average of 1,781 per month. This total includes favorable decisions, defaults, and terminations. DISCO has been dramatically reducing its backlog while also fine-tuning its processes to clear more cases without referral to DOHA. Thus DISCO and DOHA will both be faster.

14. Hearing or Non-hearing Process:

15. Appeal Board Process:

16. Revised Adjudicative Guidelines: Revised Adjudicative Guidelines were issued December 29, 2005, with a Memorandum from Stephen J. Hadley, Assistant to the President for National Security Affairs, 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 is issued on or after September 1, 2006.

17. Foreign Passport PolicyNow Supports Reciprocity: 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.”

18. A Foreign Passport Case: Mitigating Conditions of 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.”

19. 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.”

20. 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.

21. 2008 Amendment to IRTPA: Effective January 1, 2008, Public Law 110-181, Section 3002 (the Bond Amendment) repealed Title 10 U.S.C. § 986 (the Smith Amendment), which applied only to the Department of Defense (DoD). Section 3002 also provided an amendment to the Intelligence Reform and Terrorism Prevention Act. 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.

22. 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, 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. 986. This change is also effective January 1, 2008.

23. 2008 Amendments to IRTPA (continued): A Federal agency may not grant or renew a security clearance to individuals seeking clearances that provide access to Special Access Programs (SAP), Restricted Data (RD), or Sensitive Compartmented Information (SCI): (1) who have been convicted of crimes and incarcerated for not less than one year, (2) who have been discharged or dismissed from the Armed Forces under dishonorable conditions, and (3) who are determined to be mentally incompetent.

24. 2008 Amendments to IRTPA (continued): Individuals previously barred under the Smith Amendment may now be eligible for reconsideration for a security clearance and do not have to wait the normal year to re-apply. USDI has worked successfully with both the ODNI and the Personnel Security Working Group to develop policy guidance to implement the statutory change.

25. DoD Implementation of Bond Amendment to IRTPA: On June 20, 2008, the Deputy Under Secretary of Defense (HUMINT, Counterintelligence & Security) signed out a four-page memorandum to the Department’s adjudicators implementing the Bond Amendment. This guidance is designed to maximize the efficiency with which the Department’s security clearance adjudicators will handle the relatively small number of cases in which the facts trigger the Bond Amendment.

26. One Less Due Process Difference: -- The opportunity to call third-party witnesses enjoyed by industrial clearance holders and applicants has now been extended to military personnel and DoD civilian employees by a Memorandum signed 19 November 2007 by the Under Secretary of Defense (Intelligence) titled “Amendment to DoD Regulation 5200.2-R to Delete Bar on Witnesses.” That Memorandum directs the implementation of this important change to DoD 5200.2-R by deleting, effective immediately, the sentence in Appendix 13, Paragraph AP 13.1.5.4 which stated that “The appellant will not have the opportunity to present or cross-examine witnesses.”

27. Visit the DOHA Web Site: Feel free to direct an individual with questions to the Defense Office of Hearings and Appeals web site address: http://www.defenselink.mil.dodgc.doha 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 redacted form (to protect personal privacy). In addition, you can advise any individual that they can call DOHA at either: 1-866-231-3153 (Arlington, Virginia) or 1-614-827-1619 (Columbus, Ohio) to ask about a case.