KEYWORD: CAC
DIGEST: In analyzing the concerns in Applicant’s case, the Judge applied the wrong standard. 
In both the Policies and Conclusion sections of the Decision, the Judge cited to the “clearly
consistent with the national interest” standard required for security clearance determinations. 
The Policies section also contains the following language: “In all adjudications, the protection of
the national security is the paramount consideration. Therefore, any doubt concerning personnel
being considered for CAC eligibility should be resolved in favor of national interest.”  In a CAC
case, however, the appropriate standard is whether the applicant’s conduct poses an
“unacceptable risk.”  The application of the wrong standard raises due process concerns and
warrants corrective action.  Given these circumstances, the best resolution is to remand the case
to the Judge for correction of the identified error and issuance of a new decision consistent with
the requirements of the Instruction. Adverse decision remanded.
CASENO: 17-04072.a1
DATE: 01/10/2019
DATE: January 10, 2019
In Re:
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Applicant for CAC Eligibility
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CAC Case No. 17-04072
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro se
The Department of Defense (DoD) declined to grant Applicant eligibility for Common
Access Card (CAC) credentialing.  On January 19, 2018, DoD issued a statement of reasons (SOR)
advising Applicant of the basis for that decision–Misconduct or Negligence in Employment
concerns and Material, Intentional False Statement, Deception, or Fraud concerns, raised under the
adjudicative standards in the appendices of DoD Instruction 5200.46 (Sep. 9, 2014) (Instruction). 
Applicant requested a hearing.  On September 6, 2018, after the hearing, Defense Office of Hearings
and Appeals (DOHA) Administrative Judge Mark Harvey denied Applicant’s request for CAC
eligibility.  Applicant appealed pursuant to Instruction, Enclosure 4 ¶ 6.
In his appeal brief, Applicant claims that he was unaware of his right to be represented at the
hearing and believes, if he had he been represented, the Judge would have decided the case in his
favor.  We do not find Applicant’s argument persuasive.  With the SOR, Applicant was provided
a copy of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended), which in ¶ E3.1.7
sets forth his right to “appear with or without counsel or a personal representative” at the hearing. 
Prior to the hearing, Department Counsel also sent Applicant a letter that informed him that he could
represent himself at the hearing, retain an attorney, or obtain the help of anyone else, such as a union
representative or family advisor.  Hearing Exhibit 4.  At the hearing, the Judge advised Applicant
of his right to be represented by an attorney or personal representative at his own expense and
inquired whether Applicant was going to represent himself.  Applicant responded to the Judge’s
question in the affirmative.  Tr. at 5-8.  We conclude that Applicant was properly advised of his right
to be represented by an attorney at his own expense or by a personal representative, and he waived
his right to such representation. 
In analyzing the concerns in Applicant’s case, the Judge applied the wrong standard.  In both
the Policies and Conclusion sections of the Decision, the Judge cited to the “clearly consistent with
the national interest” standard required for security clearance determinations.1  The Policies section
also contains the following language: “In all adjudications, the protection of the national security
is the paramount consideration. Therefore, any doubt concerning personnel being considered for
CAC eligibility should be resolved in favor of national interest.”  In a CAC case, however, the
appropriate standard is whether the applicant’s conduct poses an “unacceptable risk.”2  The
application of the wrong standard raises due process concerns and warrants corrective action.  Given
these circumstances, the best resolution is to remand the case to the Judge for correction of the
identified error and issuance of a new decision consistent with the requirements of the Instruction.
1 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).  
2 “[T]he overriding factor . . . is unacceptable risk.”  Instruction, Encl. 4 ¶ 1(b).  “The determination will be
unfavorable . . . when there is a reasonable basis to conclude that derogatory information or conduct relating to the . .
. CAC credentialing standards presents an unacceptable risk for the U.S. Government.”  Id. at ¶ 4.
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Order
The Decision is REMANDED.   
Signed: Michael Ra’anan       
Michael Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: James E. Moody        
James E. Moody
Administrative Judge
Member, Appeal Board
Signed: James F. Duffy         
James F. Duffy
Administrative Judge
Member, Appeal Board
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