KEYWORD: Guideline F; Guideline J; Guideline E; Guideline G
DIGEST: .  The Judge concluded that Applicant provided deliberately false answers on his
security clearance application and that Applicant had failed to mitigate the Guideline E security
concerns.  However, the Judge made no findings or conclusions regarding the allegations under
Guidelines F, J, and G.  He stated that to undertake such findings and conclusions would be
“pointless.  The Directive says “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 . . .”  This provision does not authorize a Judge to enter findings and
conclusions only as to some of the allegations.  Rather, it requires the Judge to address all of
them.  The parties and the Board have a right to know what findings the Judge is making with
respect to all of the SOR allegations, not just some of them.  Adverse decision remanded. 
CASENO: 08-07803.a1
DATE: 09/21/2009
DATE: September 21, 2009
In Re:
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Applicant for Security Clearance
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ISCR Case No. 08-07803
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
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Emilio Jaksetic, Esq., 
FOR APPLICANT
Pro Se
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On January 9, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of
the basis for that decision–security concerns raised under Guideline F (Financial Considerations),
Guideline J (Criminal Conduct), Guideline G (Alcohol Consumption), and Guideline E (Personal
Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).
Applicant requested a hearing.  On June 15, 2009, after the hearing, Administrative Judge Michael
H. Leonard denied Applicant’s request for a security clearance.  Applicant appealed pursuant to
Directive ¶¶  E3.1.28 and E3.1.30, and Department Counsel subsequently cross-appealed pursuant
to Directive ¶ E3.1.28.  
Applicant raised the following issue on appeal: whether the Judge’s adverse security
clearance decision is arbitrary, capricious, or contrary to law.  Department Counsel raised the
following issue on cross appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to
law in that he failed to make findings of fact and reach conclusions concerning the security concerns
alleged under Guidelines F, J, and G.  Finding error, we remand the case to the Judge.
The Judge found that, on two different security clearance applications, Applicant provided
false answers concerning his prior illegal drug use.  The Judge concluded that Applicant’s answers
were deliberately false and that, viewed in light of the entire record, Applicant had failed to mitigate
the Guideline E security concerns.  However, the Judge made no findings or conclusions regarding
the allegations under Guidelines F, J, and G.  He stated that, because such findings and conclusions,
even if favorable, would not change the ultimate adverse decision, to undertake them would be
“pointless.”  Decision at 6.
“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 . . .”
Directive ¶ D3.1.25.  This provision does not on its face authorize a Judge to enter findings and
conclusions only as to some of the allegations.  Rather, by its plain language it requires the Judge
to address all of them.  The Board has previously held that the “parties and the Board have a right
to know what findings the Judge is making with respect to all of the SOR allegations, not just some
of them.”  ISCR Case No. 03-22883 at 3 (App. Bd. Jan. 19, 2006).  The Board does not accept the
Judge’s view that it would be futile to address the entirety of the security concerns alleged in the
SOR.  For one thing, failure to make findings with regard to all the SOR allegations substantially
impairs a losing party’s ability to submit a meaningful appeal, preventing ab initio an examination
of the evidentiary sufficiency of factual findings or compliance with Executive Order 10865 or the
Directive.  See Directive ¶ D3.1.32 for the Appeal Board’s scope of review.  Should the losing party
demonstrate error under the one Guideline with findings and conclusions, the prevailing party would
Department Counsel Brief on Appeal at 7: “Implicit in the Administrative Judge’s stated reasons for not1
addressing the non-guideline E allegations are two assumptions: that his findings and conclusions under Guideline E will
be upheld in their entirety on appeal, and those findings and conclusions will be deemed sufficient to support his
unfavorable security clearance decision.  The Judge’s implicit assumptions ignore the possibility that Applicant might
be able to persuade the Appeal Board that one or more of the Judge’s findings and conclusions are not sustainable.  And,
the Judge’s implicit assumptions ignore the possibility that Department counsel might want to argue, in the alternative,
that any error identified by Applicant on appeal is harmless in light of the [remaining] sustainable findings and
conclusions.”  
The Supreme Court has defined a final action as a “definitive” statement of the agency on the matters at issue2
in a case.  Federal Trade Commission v. Standard Oil, 449 U.S. 232, 239 (1980).  An agency must give “reasoned
consideration to all the material facts and issues” in cases before it.  Greater Boston Television Corp. v. Federal
Communication Commission, 444 F.2d. 851, (D.C. Cir. 1970), cert. denied,. 403 U.S. 923 (1971).  The Board concludes
that the Directive imposes a similar requirement for finality in security clearance cases.    
Compare ISCR Case No. 04-09488 at 2 (App. Bd. Nov. 29, 2006), in which the Board held that a Judge’s3
failure to make findings and conclusions regarding one allegation in the SOR was harmless error.   
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be precluded from arguing that the decision is nevertheless sustainable in light of the findings under
the remaining Guidelines.   More fundamentally, without findings and conclusions on all the1
allegations in the SOR, DOHA is precluded from issuing a final agency decision.   Finality, along2
with a complete record, is a necessary precondition to proper evaluation of an applicant’s request for
reconsideration, in accordance with Directive ¶¶  E3.1.37 and 38.  In light of the above, the only
recourse is to remand the case to the Judge for a new decision, one in which he makes findings of
fact and reaches conclusions as to all the allegations in the SOR.   The issues raised by Applicant3
in his appeal brief are not ripe for consideration at this time.
Order
The Judge’s adverse security clearance decision is REMANDED.        
Signed: Michael Y. Ra’anan           
Michael Y. Ra’anan
Administrative Judge
Chairman, Appeal Board
Signed: Jeffrey D. Billett                    
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
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Signed: James E. Moody                      
James E. Moody
Administrative Judge
Member, Appeal Board