KEYWORD: Guideline J
DIGEST: The Appeal Board does not have authority to grant waivers of 10 U.S.C. §986.  The
Board will refer Applicant’s case to the Director, DOHA for further consideration pursuant to the
Under Secretary of Defense Memorandum, dated August 30, 2006.
CASENO: 06-19803.a1
DATE: 08/24/2007
DATE: August 24, 2007
In Re:
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Applicant for Security Clearance
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ISCR Case No. 06-19803
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro Se
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On September 29, 2006, DOHA issued a statement of reasons advising Applicant of the
basis for that decision–security concerns raised under Guideline J (Criminal Conduct) of Department
of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.
10 U.S.C. 986 (c) prevents the Department of Defense from granting or renewing a clearance to anyone who1
“. . . 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.” 
Only the Director, DOHA, or his designee has the authority to grant waivers in meritorious cases.  See2
Memorandum from Under Secretary of Defense for Intelligence dated August 30, 2006, regarding “Implementation of
Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (Dec. 29, 2005.)” There is no
provision for waiver recommendations by Judges or others.  See DOHA Operating Instruction 64, as revised, Sep. 12,
2006 (“ . . . the Administrative Judge shall not opine whether a wavier of 10 U.S.C. 986 is merited, nor recommend
whether to consider the case for a waiver of 10 U.S.C. 986.”)
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On March 15, 2007, after the hearing, Administrative Judge Claude R. Heiny denied Applicant’s
request for a security clearance.  Applicant filed a timely appeal pursuant to Directive ¶¶  E3.1.28
and E3.1.30.
On appeal, Applicant requests that he be granted a waiver of 10 U.S.C. 986 (The Smith Act)
by the Director based upon the record in his case.   The Appeal Board does not have authority to1
grant waivers of 10 U.S.C. 986.  See, e.g., ISCR Case No. 04-11041 at 2-3 (App. Bd. Sep. 29,
2006).   The Board will refer Applicant’s case to the Director, DOHA, for further consideration2
pursuant to the Under Secretary of Defense Memorandum dated August 30, 2006.    
The Appeal Board’s authority to review a case is limited to cases in which the appealing party
has alleged the Judge committed harmful error.  Applicant has not made an allegation of harmful
error.  Therefore, the decision of the Judge denying Applicant a security clearance is AFFIRMED.
Order
The Judge adverse security clearance decision is AFFIRMED.   
Signed: Michael Y. Ra’anan        
Michael Y. Ra’anan
Administrative Judge
Chairman, Appeal Board
Signed: William S. Fields              
William S. Fields
Administrative Judge
Member, Appeal Board
Signed: James E. Moody                
James E. Moody
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Administrative Judge
Member, Appeal Board