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ISCR Case 08-07352.a1 — CASE

ISCR Case 08-07352.a1denied

Case Headnote

ISCR Case No. 08-07352.a1

Jul 28, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance was denied under Guideline F (Financial Considerations) for an applicant representing himself, primarily due to numerous delinquent debts totaling $48,945. The Board determined that the applicant had been adequately informed of his due process rights and had sufficient opportunity to present his case, despite his claims of violations.

The denial was based on several disqualifying conditions, specifically AG ¶ 20(a). The judge found that the applicant had acted irresponsibly in managing his debts and demonstrated insufficient commitment to resolving his financial issues. Although the applicant had recently enrolled in a debt plan, this action was not deemed sufficient to mitigate the concerns regarding his financial irresponsibility.

Ultimately, the judge concluded that the applicant's overall financial conduct and lack of demonstrated commitment to resolving his substantial debts warranted the denial of his security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations

Key Rule Quoted

“It is not clearly consistent with national interest to grant Applicant eligibility for a security clearance.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedJan 23, 2009
Answer filed—
Hearing heldMay 14, 2009
Decision dateJul 28, 2009

Cite For

Due Process Considerations in Pro Se Representation
Financial Irresponsibility Under Guideline F
Criteria for Denying Security Clearance Based on Financial Issues

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal concerned the denial of a security clearance based on financial considerations under Guideline F. The applicant argued he was denied due process by representing himself. The Board affirmed the Administrative Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPaul J. Mason — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Due-process / fairness — raised by the applicantRejected
Applicant claimed he was denied due process by representing himself.

Why the Board ruled this way

The Board found no error in the Administrative Judge's decision and concluded that the applicant was not denied due process. The applicant had been informed of his rights and chose to represent himself, presenting evidence and witnesses during the hearing.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
William S. Fields
James E. Moody

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline F DIGEST: Applicant avers that Department Counsel made statements which could be viewed as advice that he did not need nota lawyer and he relied upon this in electing to appear pro se. The Board cannot consider new evidence. Still, the Board considered Applicant’s argument. Prior to the hearing, he received written guidance from DOHA that he had the right to employ counsel, or have another person represent him; that he had the right to present evidence and witnesses; that he had the right to cross-examine witnesses against him; and that he had the right to object to evidence. At the hearing, the Judge told him of his right to employ counsel. He said he decided to represent himself. He presented documentary evidence, called witnesses, and testified in his own behalf. He points to nothing which he would have done differently had he had counsel, or anything likely to have produced a different result. Under the facts of this case, there is no basis to conclude that Applicant was denied due process. Adverse decision affirmed. CASENO: 08-07352.a1 DATE: 07/28/2009 DATE: July 28, 2009 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-07352

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT The debts which the Judge found against Applicant total $48,945. Caroline H. Jeffreys, Esq., Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On January 23, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 14, 2009, after the hearing, Administrative Judge Paul J. Mason denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether Applicant was denied due process insofar as he represented himself. Finding no error, we affirm the decision of the Judge. The Judge found that Applicant had numerous delinquent debts, mostly for credit card accounts. Acknowledging that these debts may have been affected by Applicant’s former wife’s problems with drugs, the Judge nevertheless concluded that Applicant had not mitigated the security concerns which his financial problems raised. “[Applicant] acted irresponsibly . . . in not handling the past due debts in a prudent manner. His enrollment in [a] debt plan in early March 2009, and his payment of four small debts . . . four days after the hearing do not provide me with sufficient confidence to believe he is truly committed to paying the remaining debts.” Decision at 8-9. Applicant offers new evidence in the form of a contention that, at some point prior to the hearing, Department Counsel made statements which could be construed as advice that he need not hire an attorney to represent him. He states that he relied upon this purported advice in electing to conduct his case pro se and that he was overwhelmed at the hearing. The Board cannot consider new evidence on appeal. Directive ¶ E3.1.29. Nonetheless, the Board has considered Applicant’s argument, but only for the limited purpose of addressing Applicant’s due process claim. The record demonstrates that, prior to the hearing, he received written guidance from the Chief Administrative Judge that he had the right to employ counsel, or to have some other person represent him at the hearing; that he had the right to present evidence and witnesses; that he had the right to cross- examine witnesses against him; and that he had the right to object to evidence. At the beginning of the hearing, the Judge further advised him of his right to employ counsel. Applicant stated that he had given thought to doing so but had decided to represent himself. Tr. at 4. During the hearing, Applicant presented documentary evidence, called three witnesses, and testified in his own behalf. He points to nothing in the record which he likely would have done differently had he been represented by counsel, or anything likely to have produced a different result. Under the facts of this case, there is no basis to conclude that Applicant was denied the due process afforded by the Directive. See ISCR Case No. 08-03110 at 2 (App. Bd. Jan. 27, 2009). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Judge’s decision that “it is not clearly consistent with national interest to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 9. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Wiliiam S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board