Appendix A to Part 155 - Additional Procedural Guidance
32:1.1.1.6.48.0.44.7.38 : Appendix A
Appendix A to Part 155 - Additional Procedural Guidance
1. When the DISCO cannot affirmatively find that it is clearly
consistent with the national interest to grant or continue a
security clearance for an applicant, the case will be promptly
referred to the DOHA.
2. Upon referral, the DOHA shall make a prompt determination
whether to grant or continue a security clearance, issue a
statement of reasons (SOR) as to why it is not clearly consistent
with the national interest to do so, or take interim actions,
including but not limited to:
a. Direct further investigation.
b. Propound written interrogatories to the applicant or other
persons with relevant information.
c. Requiring the applicant to undergo a medical evaluation by a
DoD Psychiatric Consultant.
d. Interviewing the applicant.
3. An unfavorable clearance decision shall not be made unless
the applicant has been provided with a written SOR that shall be as
detailed and comprehensive as the national security permits. A
letter of instruction with the SOR shall explain that the applicant
or Department Counsel may request a hearing. It shall also explain
the adverse consequences for failure to respond to the SOR within
the prescribed time frame.
4. The applicant must submit a detailed written answer to the
SOR under oath or affirmation that shall admit or deny each listed
allegation. A general denial or other similar answer is
insufficient. To be entitled to a hearing, the applicant must
specifically request a hearing in his or her answer. The answer
must be received by the DOHA within 20 days from receipt of the
SOR. Requests for an extension of time to file an answer may be
submitted to the Director, DOHA, or designee, who in turn may grant
the extension only upon a showing of good cause.
5. If the applicant does not file a timely and responsive answer
to the SOR, the Director, DOHA, or designee, may discontinue
processing the case, deny issuance of the requested security
clearance, and direct the DISCO to revoke any security clearance
held by the applicant.
6. Should review of the applicant's answer to the SOR indicate
that allegations are unfounded, or evidence is insufficient for
further processing, Department Counsel shall take such action as
appropriate under the circumstances, including but not limited to
withdrawal of the SOR and transmittal to the Director for
notification of the DISCO for appropriate action.
7. If the applicant has not requested a hearing with his or her
answer to the SOR and Department Counsel has not requested a
hearing within 20 days of receipt of the applicant's answer, the
case shall be assigned to an Administrative Judge for a clearance
decision based on the written record. Department Counsel shall
provide the applicant with a copy of all relevant and material
information that could be adduced at a hearing. The applicant shall
have 30 days from receipt of the information in which to submit a
documentary response setting forth objections, rebuttal,
extenuation, mitigation, or explanation, as appropriate.
8. If a hearing is requested by the applicant or Department
Counsel, the case shall be assigned to an Administrative Judge for
a clearance decision based on the hearing record. Following
issuance of a notice of hearing by the Administrative Judge, or
designee, the applicant shall appear in person with or without
counsel or a personal representative at a time and place designated
by the notice of hearing. The applicant shall have a reasonable
time to prepare his or her case. The applicant shall be notified at
least 15 days in advance of the time and place of the hearing,
which generally shall be held at a location in the United States
within a metropolitan area near the applicant's place of employment
or residence. A continuance may be granted by the Administrative
Judge only for good cause. Hearings may be held outside of the
United States in NATO cases, or in other cases upon a finding of
good cause by the Director, DOHA, or designee.
9. The Administrative Judge may require a prehearing
conference.
10. The Administrative Judge may rule on questions of procedure,
discovery, and evidence and shall conduct all proceedings in a
fair, timely, and orderly manner.
11. Discovery by the applicant is limited to non-privileged
documents and materials subject to control by the DOHA. Discovery
by Department Counsel after issuance of an SOR may be granted by
the Administrative Judge only upon a showing of good cause.
12. A hearing shall be open except when the applicant requests
that it be closed, or when the Administrative Judge determines that
there is a need to protect classified information or there is other
good cause for keeping the proceeding closed. No inference shall be
drawn as to the merits of a case on the basis of a request that the
hearing be closed.
13. As far in advance as practical, Department Counsel and the
applicant shall serve one another with a copy of any pleading,
proposed documentary evidence, or other written communication to be
submitted to the Administrative Judge.
14. Department Counsel is responsible for presenting witnesses
and other evidence to establish facts alleged in the SOR that have
been controverted.
15. The applicant is responsible for presenting witnesses and
other evidence to rebut, explain, extenuate, or mitigate facts
admitted by the applicant or proven by Department Counsel, and has
the ultimate burden of persuasion as to obtaining a favorable
clearance decision.
16. Witnesses shall be subject to cross-examination.
17. The SOR may be amended at the hearing by the Administrative
Judge on his or her own motion, or upon motion by Department
Counsel or the applicant, so as to render it in conformity with the
evidence admitted or for other good cause. When such amendments are
made, the Administrative Judge may grant either party's request for
such additional time as the Administrative Judge may deem
appropriate for further preparation or other good cause.
18. The Administrative Judge hearing the case shall notify the
applicant and all witnesses testifying that 18 U.S.C. 1001 is
applicable.
19. The Federal Rules of Evidence (28 U.S.C. 101 et seq.)
shall serve as a guide. Relevant and material evidence may be
received subject to rebuttal, and technical rules of evidence may
be relaxed, except as otherwise provided herein, to permit the
development of a full and complete record.
20. Official records or evidence compiled or created in the
regular course of business, other than DoD personnel background
reports of investigation (ROI), may be received and considered by
the Administrative Judge without authenticating witnesses, provided
that such information has been furnished by an investigative agency
pursuant to its responsibilities in connection with assisting the
Secretary of Defense, or the Department or Agency head concerned,
to safeguard classified information within industry under to E.O.
10865, as amended. An ROI may be received with an authenticating
witness provided it is otherwise admissible under the Federal Rules
of Evidence (28 U.S.C. 101 et seq.).
21. Records that cannot be inspected by the applicant because
they are classified may be received and considered by the
Administrative Judge, provided the GC, DoD, has:
a. Made a preliminary determination that such evidence appears
to be relevant and material.
b. Determined that failure to receive and consider such evidence
would be substantially harmful to the national security.
22. A written or oral statement adverse to the applicant on a
controverted issue may be received and considered by the
Administrative Judge without affording an opportunity to
cross-examine the person making the statement orally, or in writing
when justified by the circumstances, only in either of the
following circumstances:
a. If the head of the Department or Agency supplying the
statement certifies that the person who furnished the information
is a confidential informant who has been engaged in obtaining
intelligence information for the Government and that disclosure of
his or her identity would be substantially harmful to the national
interest; or
b. If the GC, DoD, has determined the statement concerned
appears to be relevant, material, and reliable; failure to receive
and consider the statement would be substantially harmful to the
national security; and the person who furnished the information
cannot appear to testify due to the following:
(1) Death, severe illness, or similar cause, in which case the
identity of the person and the information to be considered shall
be made available to the applicant; or
(2) Some other cause determined by the Secretary of Defense, or
when appropriate by the Department or Agency head, to be good and
sufficient.
23. Whenever evidence is received under item 21. or 22., the
applicant shall be furnished with as comprehensive and detailed a
summary of the information as the national security permits. The
Administrative Judge and Appeal Board may make a clearance decision
either favorable or unfavorable to the applicant based on such
evidence after giving appropriate consideration to the fact that
the applicant did not have an opportunity to confront such
evidence, but any final determination adverse to the applicant
shall be made only by the Secretary of Defense, or the Department
or Agency head, based on a personal review of the case record.
24. A verbatim transcript shall be made of the hearing. The
applicant shall be furnished one copy of the transcript, less the
exhibits, without cost.
25. The Administrative Judge shall make a written clearance
decision in a timely manner setting forth pertinent findings of
fact, policies, and conclusions as to the allegations in the SOR,
and whether it is clearly consistent with the national interest to
grant or continue a security clearance for the applicant. The
applicant and Department Counsel shall each be provided a copy of
the clearance decision. In cases in which evidence is received
under items 21. and 22., the Administrative Judge's written
clearance decision may require deletions in the interest of
national security.
26. If the Administrative Judge decides that it is clearly
consistent with the national interest for the applicant to be
granted or to retain a security clearance, the DISCO shall be so
notified by the Director, DOHA, or designee, when the clearance
decision becomes final in accordance with item 36., below.
27. If the Administrative Judge decides that it is not clearly
consistent with the national interest for the applicant to be
granted or to retain a security clearance, the Director, DOHA, or
designee, shall expeditiously notify the DISCO, which shall in turn
notify the applicant's employer of the denial or revocation of the
applicant's security clearance. The letter forwarding the
Administrative Judge's clearance decision to the applicant shall
advise the applicant that these actions are being taken, and that
the applicant may appeal the Administrative Judge's clearance
decision.
28. The applicant or Department Counsel may appeal the
Administrative Judge's clearance decision by filing a written
notice of appeal with the Appeal Board within 15 days after the
date of the Administrative Judge's clearance decision. A notice of
appeal received after 15 days from the date of the clearance
decision shall not be accepted by the Appeal Board, or designated
Board Member, except for good cause. A notice of cross appeal may
be filed with the Appeal Board within 10 days of receipt of the
notice of appeal. An untimely cross appeal shall not be accepted by
the Appeal Board, or designated Board Member, except for good
cause.
29. Upon receipt of a notice of appeal, the Appeal Board shall
be provided the case record. No new evidence shall be received or
considered by the Appeal Board.
30. After filing a timely notice of appeal, a written appeal
brief must be received by the Appeal Board within 45 days from the
date of the Administrative Judge's clearance decision. The appeal
brief must state the specific issue or issues being raised, and
cite specific portions of the case record supporting any alleged
error. A written reply brief, if any, must be filed within 20 days
from receipt of the appeal brief. A copy of any brief filed must be
served upon the applicant or Department Counsel, as
appropriate.
31. Requests for extension of time for submission of briefs may
be submitted to the Appeal Board or designated Board Member.
A copy of any request for extension of time must be served on
the opposing party at the time of submission. The Appeal Board, or
designated Board Member, shall be responsible for controlling the
Appeal Board's docket, and may enter an order dismissing an appeal
in an appropriate case or vacate such an order upon a showing of
good cause.
32. The Appeal Board shall address the material issues raised by
the parties to determine whether harmful error occurred. Its scope
of review shall be to determine whether or not:
a. The Administrative Judge's findings of fact are supported by
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion in light of all the contrary
evidence in the same record. In making this review, the Appeal
Board shall give deference to the credibility determinations of the
Administrative Judge;
b. The Administrative Judge adhered to the procedures required
by E.O. 10865, as amended and this part; or
c. The Administrative Judge's rulings or conclusions are
arbitrary, capricious, or contrary to law.
33. The Appeal Board shall issue a written clearance decision
addressing the material issues raised on appeal. The Appeal Board
shall have authority to:
a. Affirm the decision of the Administrative Judge;
b. Remand the case to an Administrative Judge to correct
identified error. If the case is remanded, the Appeal Board shall
specify the action to be taken on remand; or
c. Reverse the decision of the Administrative Judge if
correction of identified error mandates such action.
34. A copy of the Appeal Board's written clearance decision
shall be provided to the parties. In cases in which evidence was
received under items 21. and 22., the Appeal Board's clearance
decision may require deletions in the interest of national
security.
35. Upon remand, the case file shall be assigned to an
Administrative Judge for correction of error(s) in accordance with
the Appeal Board's clearance decision. The assigned Administrative
Judge shall make a new clearance decision in the case after
correcting the error(s) identified by the Appeal Board. The
Administrative Judge's clearance decision after remand shall be
provided to the parties. The clearance decision after remand may be
appealed pursuant to items 28. to 35.
36. A clearance decision shall be considered final when:
a. A security clearance is granted or continued pursuant to item
2.;
b. No timely notice of appeal is filed;
c. No timely appeal brief is filed after a notice of appeal has
been filed;
d. The appeal has been withdrawn;
e. When the Appeal Board affirms or reverses an Administrative
Judge's clearance decision; or
f. When a decision has been made by the Secretary of Defense, or
the Department or Agency head, under item 23.
The Director, DOHA, or designee, shall notify the DISCO of all
final clearance decisions.
37. An applicant whose security clearance has been finally
denied or revoked by the DOHA is barred from reapplication for 1
year from the date of the initial unfavorable clearance
decision.
38. A reapplication for a security clearance must be made
initially by the applicant's employer to the DISCO and is subject
to the same processing requirements as those for a new security
clearance application. The applicant shall thereafter be advised he
is responsible for providing the Director, DOHA, with a copy of any
adverse clearance decision together with evidence that
circumstances or conditions previously found against the applicant
have been rectified or sufficiently mitigated to warrant
reconsideration.
39. If the Director, DOHA, determines that reconsideration is
warranted, the case shall be subject to this part for making a
clearance decision.
40. If the Director, DOHA, determines that reconsideration is
not warranted, the DOHA shall notify the applicant of this
decision. Such a decision is final and bars further reapplication
for an additional one year period from the date of the decision
rejecting the application.
41. Nothing in this part is intended to give an applicant
reapplying for a security clearance any greater rights than those
applicable to any other applicant under this part.
42. An applicant may file a written petition, under oath or
affirmation, for reimbursement of loss of earnings resulting from
the suspension, revocation, or denial of his or her security
clearance. The petition for reimbursement must include as an
attachment the favorable clearance decision and documentation
supporting the reimbursement claim. The Director, DOHA, or
designee, may in his or her discretion require additional
information from the petitioner.
43. Claims for reimbursement must be filed with the Director,
DOHA, or designee, within 1 year after the date the security
clearance is granted. Department Counsel generally shall file a
response within 60 days after receipt of applicant's petition for
reimbursement and provide a copy thereof to the applicant.
44. Reimbursement is authorized only if the applicant
demonstrates by clear and convincing evidence to the Director,
DOHA, that all of the following conditions are met:
a. The suspension, denial, or revocation was the primary cause
of the claimed pecuniary loss; and
b. The suspension, denial, or revocation was due to gross
negligence of the Department of Defense at the time the action was
taken, and not in any way by the applicant's failure or refusal to
cooperate.
45. The amount of reimbursement shall not exceed the difference
between the earnings of the applicant at the time of the
suspension, revocation, or denial and the applicant's interim
earnings, and further shall be subject to reasonable efforts on the
part of the applicant to mitigate any loss of earnings. No
reimbursement shall be allowed for any period of undue delay
resulting from the applicant's acts or failure to act.
Reimbursement is not authorized for loss of merit raises and
general increases, loss of employment opportunities, counsel's
fees, or other costs relating to proceedings under this part.
46. Claims approved by the Director, DOHA, shall be forwarded to
the Department or Agency concerned for payment. Any payment made in
response to a claim for reimbursement shall be in full satisfaction
of any further claim against the United States or any Federal
Department or Agency, or any of its officers or employees.
47. Clearance decisions issued by Administrative Judges and the
Appeal Board shall be indexed and made available in redacted form
to the public.
[57 FR 5383, Feb. 14, 1992, as amended at 59 FR 35464, July 12,
1994; 59 FR 48565, Sept. 22, 1994]