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DOHA OPERATING INSTRUCTION No. 64
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Date: September 12, 2006
Replaces DOHA OI No. 64, dated July 10, 2001
PROCESSING PROCEDURES FOR CASES SUBJECT TO 10 U.S.C. 986
1. BACKGROUND
This Operating instruction further implements the waiver authority
granted to the Director, DOHA by the Under Secretary of Defense
(Intelligence) in the August 30, 2006 Memorandum titled, “Implementation
of Adjudicative Guidelines for Determining Eligibility for Access
to Classified Information (December 29, 2005)" (Enclosure 1),
and Title 10 of the United States Code, Section 986 (as amended),
which places restrictions on the granting or renewal of security
clearances by the Department of Defense (Enclosure 2).
2. RESPONSIBILITIES
a. Personnel Security Specialists (Adjudicators) assigned to the
Special Actions, Policy and Review Division in Arlington, Virginia
and to the Personnel Security Division in Columbus, Ohio are responsible
for the initial identification of case files subject to 10 U.S.C.
986. When forwarding a case file to Department Counsel for legal
review of a Statement of Reasons (SOR), Adjudicators shall cite
10 U.S.C. 986 in the draft SOR (as provided for in subparagraphs
3.a. or 3.b. below).
b. Department Counsel, in coordination with the security specialists,
are responsible for the final legal determination as to whether
the SOR should cite 10 U.S.C. 986.
c. Security specialists are responsible for identifying cases
in the case tracking system that are determined, in coordination
with Department Counsel, to be subject to 10 U.S.C. 986.
d. Whenever SORs citing 10 U.S.C. 986 are issued, the Administrative
Support Division shall provide the Applicant with a copy of this
Operating Instruction (including Enclosures I and 2) in the same
envelope with the SOR.
e. Administrative Judges are responsible for the initial determination
as to whether 10 U.S.C. 986 applies to the facts of the case.
f. In the event of an appeal raising an issue as to the applicability
of 10 U.S.C. 986, the DOHA Security Clearance Appeal Board (Appeal
Board) is responsible for final resolution of the issue.
g. In the event of a final determination that 10 U.S.C. 986 applies
to the facts of the case, the Director, DOHA, is solely responsible
for the discretionary decision as to whether to grant a waiver in
accordance with 10 U.S.C. 986(d).
3. PROCEDURES
a. If the facts of a case indicate that it is subject to either
10 U.S.C. 986(c) (l) (which disqualifies persons with convictions
and sentences of more than one year), or 10 U.S.C. 986(c)(4) (which
disqualifies persons who have been discharged or dismissed from
the Armed Forces under dishonorable conditions), the SOR shall allege
the facts as a normal SOR would and additionally shall use the following
language as a separate subparagraph under Guideline J:
Due to the facts alleged in subparagraph [ ],10 U.S.C. 986 (as
amended) disqualifies you from having a security clearance granted
or renewed by the Department of Defense. However, 10 U.S.C.
986 provides that, in a meritorious case, an exception to this
prohibition may be authorized. Should you choose to do so, your
response may include information which would support
consideration of such a waiver. A copy of 10 U.S.C. 986 is
attached.
b. If the facts of a case indicate that it is subject to either
10 U.S.C. 986(c)(2) (which disqualifies persons who are unlawful
users of, or addicted to, a controlled substance), or 10 U.S.C.
986(c)(3) (which disqualifies persons who have been determined to
be mentally incompetent), the SOR shall allege the fads as a normal
SOR would and additionally shall use the following language as a
separate subparagraph under the appropriate Guideline (H or I):
Due to the facts alleged in subparagraph [ ],10 U.S.C. 986
disqualifies you from having a security clearance granted or
renewed by the Department of Defense. A copy of 10 U.S.C. 986
is attached.
c. For any SOR issued citing 10 USC 986 using either format above,
DOHA shall provide the Applicant with a copy of this Operating Instruction
(including Enclosures 1 and 2).
d. The waiver authority granted to the Director, DOHA is effective
as of August 30, 2006 for all cases involving officers or employees
of DOD contractors serviced by DOHA.
e. During a hearing or in a File of Relevant Material (as appropriate),
Department Counsel shall not argue whether a waiver of 10 U.S.C.
986 is merited. However, nothing in this subparagraph precludes
Department Counsel from making argument as to the disqualifying
effect of the Guidelines or from making argument as to whether 10
U.S.C. 986(a), (b) or (c), applies to the facts of the case; and
nothing in this subparagraph precludes the Applicant from arguing
that a waiver of 10 U.S.C. 986 is merited.
f. If an Administrative Judge issues a decision denying or revoking
a security clearance solely or in part as a result of 10 U.S.C.
986, the Administrative Judge shall not opine whether a waiver of
10 U.S.C. 986 is merited, nor recommend whether to consider the
case for a waiver of 10 U.S.C. 986: However, if an Administrative
Judge issues a decision denying or revoking a clearance solely as
a result of 10 U.S.C. 986, the decision shall state this fact and
shall identify the specific subparagraph under 10 U.S.C. 986(c)
applicable to the case.
g. If the Appeal Board issues a decision denying or revoking a
clearance solely or in part as a result of 10 U.S.C. 986, the Appeal
Board shall not opine whether a waiver of 10 U.S.C. 986 is merited,
nor recommend whether to consider the case for a waiver of 10 U.S.C.
986. However, if the Appeal Board issues a decision denying or revoking
a clearance solely as a result of 10 U.S.C. 986, the decision shall
state this fact and shall identify the specific subparagraph under
10 U.S.C. 986(c) applicable to the case.
h. If either the Appeal Board or an Administrative Judge issue
a decision denying or revoking a clearance solely as a result of
10 U.S.C. 986(c)(1) or (c)(4), the decision, once final, shall be
forwarded to the Director, DOHA, for a determination whether to
exercise his or her discretion to grant a waiver in accordance with
10 U.S.C. 986(d).
i. In determining whether to grant a waiver, the Director, DOHA,
may obtain legal analysis of the case and a recommendation as to
whether a waiver of 10 U.S.C. 986 is merited from the Deputy Director,
DOHA. The Director, DOHA, may, during periods of absence from the
office, delegate the waiver determination to the eputy Director
DOHA.
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