DEFENSE OFFICE OF HEARINGS & APPEALS

(DOHA)

April 20, 2006 Briefing for the

JSAC and NCMS (ISSIG)

History of Personnel Security

Clearance Due Process:

•Green v. McElroy (1959), E.O. 10865 (1960), Department

of the Navy v. Egan (1988), E.O. 12968, E.O. 13381.

•Implemented by DoD Directive 5220.6 & DoD 5200.2-R.

•Use of common Adjudicative Guidelines for Government.

•DISCR became DOHA as its mission broadened to

include DoD-wide Due Process obligations in 1994-1995.

•DOHA now convenes personal appearance hearings for

all of the Department’s security clearance applicants and

contractors for over 20 other agencies to appear

personally and to present relevant documents, materials,

and information under both E.O. 10865 and E.O. 12968.

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. 10865”); 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. 10865).

•Executive Order 12968 also guarantees “the opportunity to appear personally and to present relevant documents … and information”

Three Phases of the

DOHA ISCR Process:

•Preliminary Adjudicative Process

–Largest portion of cases never go to due process, as adjudicators can make decision to clear at earliest possible time.

–Had backlog of over 20,000 cases to adjudicate in early 2002.

–This was reduced to less than 4,000 cases by the end of Fiscal Year 2003 and DOHA totally eliminated its adjudicative backlog by the end of March 2004 (thanks to personnel added based on industry projections provided to DSS). This has enabled experienced DOHA adjudicators to work on other backlogs.

•Due Process Hearings & F.O.R.M.s

–Small number overall; some SORs withdrawn in clearable cases. •Appeals

–Not all cases (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.

New 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.

New 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.

Maximizing Resources:

Improving Adjudication Timeliness

In an effort to improve adjudication timeliness, DoD is

maximizing its resources across Central Adjudication

Facilities (CAF). Accordingly, there may be situations

where DOHA issues an eligibility, rather than the CAF that

would normally have cognizance. DOHA has been

providing assistance to the Defense Industrial Security

Clearance Office (DISCO) since mid 2005. 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.

Preliminary Process (up to SOR):

Security Questionnaire

Submitted

Adverse

Information Report

Periodic

Reinvestigation

Adverse Information

Case Referred to DOHA

Case Reviewed by

Personnel Security

Specialist

Statement of

Reasons (SOR)

Drafted

SOR Reviewed for

Legal Sufficiency

Investigation of

Applicant

No Adverse

Information

Decision Made in

Favor of Applicant

Case Closed Out

Favorably

(Clearance Granted

or Continued)

SOR Issued to

Applicant

Hearing or Non-hearing Process:

Statement of Reasons

(SOR) Issued

Answer to SOR

Received

Hearing Requested

Yes

Case Assigned to

Hearing Office

Hearing

Administrative Judge

Issues Written

Decision

No

File of Relevant

Material (FORM)

Prepared and Copy

Sent to Applicant

Applicant’s Response to

FORM Received

Case Assigned to

Hearing Office

Appeal Board Process:

Decision Appealed?

Yes No

Briefing Schedule Set

Brief Schedule

Completed

Appeal Board Issues

Written Decision

No Brief Received

Default Entered Case Closed

Appeal Withdrawn

Decision Affirmed

Decision Reversed

Decision Remanded

Case Returned to Hearing

Office for Further Action

Administrative Judge Issues

Written Decision

Foreign Passport Policy:

•2000 Guidance to DoD Central Adjudication Facilities (CAF) Clarifying the Application of the Foreign Preference Adjudicative Guideline

–Guideline C, Foreign Preference provides that:

•“Possession or use of a foreign passport” may be a disqualifying condition.

•No mitigating factor related to applicant’s personal convenience, safety, requirements of foreign law, or the identity of the foreign country.

•Only applicable mitigating factor addresses the official approval of the United States Government for the possession and use.

•Possession and use of a foreign passport in preference to a U.S. passport raises doubt as to the person’s allegiance is to the U.S.

•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.

Foreign Passport Policy:

•DOHA is applying the plain language of this policy memorandum.

•The DOHA Appeal Board recently adopted the plain-meaning interpretation of the August 16, 2000 ASDC3I memo by holding:

“Given the legal nature of a passport, the [DOHA Appeal Board] concludes the surrender of a passport would be achieved by returning the pass port to the issuing authority (or whatever other person or entity is authorized by law), not be giving the passport to another person or entity.” Appeal Board Decision, ISCR Case No. 99-0480 ( November 28, 2000). The Appeal Board went on to state that an “Applicant’s offer to give the [foreign country] passport to DOHA or another Department of the United States Government, to place it in escrow with the security department of his defense contractor employer, or to destroy the [foreign country] passport, does not satisfy the terms of the ASDC3I memo.”

This Decision – like all other Administrative Judge and Appeal Board Decisions -- is published on the DOHA website for anyone to read.

10 USC 986 (Smith):

•Restrictions on the Granting or Renewal of Security Clearances as Mandated by the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 -- Applies 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.

2004 Amendment to 10 USC 986:

•October 2004 Amendment to 10 USC 986: STANDARDS FOR DISQUALIFICATION FROM ELIGIBILITY FOR DEPARTMENT OF DEFENSE SECURITY CLEARANCE.

•

• (a) DISQUALIFIED PERSONS.—Subsection (c)( 1) of

• section 986 of title 10, United States Code, is amended—

•

• (1) by striking “and” and inserting “, was”; and

•

• (2) by inserting before the period at the end the following: “, and was incarcerated as a result of that sentence for not less than one year.”

•

• (b) WAIVER AUTH0RITY.—Subsection (d) of such section is amended to read as follows:

•

• “(d) WAIVER AUTHORITY.—ln a meritorious case, an exception to the prohibition in subsection (a) mav be authorized for a person described in paragraph (1) or (4) of subsection (c) if there are mitigating factors. Any such waiver may be authorized only in accordance with standards and procedures prescribed by, or under the authority of, an Executive order or other guidance issued by the President.”

Visit the DOHA Web Site:

•Feel free to direct the individual’s inquiries to the Defense

Office of Hearings and Appeals Web Site Address:

•http://www.defenselink.mil.dodgc.doha •This site will provide information about DOHA programs

and will answer many questions. 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.