DEFENSE OFFICE OF HEARINGS

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DEFENSE OFFICE OF HEARINGS APPEALS NCMS
CHESAPEAKE BAY CHAPTERANNUAL SECURITY AWARENESS
SEMINAR12 November 2008
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Whats New

• New Executive Order 13467 aligns clearance and
  suitability.
• NISPOM 2-202 paragraph governing handling the
  SF-86.
• DISCO and DOHA both improving processing times.
• Revised Adjudicative Guidelines used across
  Government enhance reciprocity and supersede the
  2000 DoD foreign passport policy.
• 10 USC 986 has been repealed and replaced for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, commonly called the Bond Amendment.
• Third-Party Witnesses are now allowed in DoD due
  process hearings for military members and
  civilian employees of the Department.

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Basis of Personnel SecurityClearance Due Process

• Green v. McElroy (1959), E.O. 10865 (1960), Navy
  v. Egan (1988), E.O. 12968 (1995), E.O. 13467
  (2008).
• 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 Departments security clearance applicants
  and contractors and for the industrial
  contractors of 23 other Federal agencies.
• Executive Order 13467 does not diminish or
  otherwise affect the denial and revocation
  procedures provided to individuals covered by
  Executive Order 10865 and only amends other parts
  of Executive Order 12968 to support clearance
  reform.

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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.).

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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.

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Administrative Judge Appeal
Board Decisions

• In Fiscal Year 2008, DOHA Administrative Judges
  issued almost 2,000 Decisions. This total
  includes 1,288 industrial security clearance
  decisions, 70 suitability decisions for ADP
  contractors, and 617 recommended decisions in
  military and civilian clearance cases.
• In Fiscal Year 2008, the DOHA Appeal Board
  issued over 250 Decisions in industrial security
  clearance cases.
• The DOHA Appeal Board is the appellate authority
  for industrial security clearance decisions and
  suitability decisions for ADP contractors but
  only if an appeal is filed. Other component
  PSABs review all AJ recommended decisions in
  military and civilian clearance cases.

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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 employees 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.

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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 applicants eligibility for access to
  classified information has been granted or
  denied, the retained documentation shall be
  destroyed.

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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.

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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

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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
  1051 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.

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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, DOHAs monthly average is
  about 24 days for favorable adjudications.

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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.

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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.

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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.

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A Foreign Passport Case

• Mitigating Conditions of the Revised Adjudicative
  Guidelines might be applied as follows in a real
  decision Applicants 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.

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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.

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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.

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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.

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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.

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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.

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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.

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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
  Departments adjudicators implementing the Bond
  Amendment.
• This guidance is designed to maximize the
  efficiency with which the Departments security
  clearance adjudicators will handle the relatively
  small number of cases in which the facts trigger
  the Bond Amendment.

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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.

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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.