ISCR Case No. 15-04368.a1

KEYWORD: Guideline F DIGEST: Although pro se applicants cannot be expected to act like lawyers, they are expected to take timely, reasonable steps to protect their rights under the Directive. Adverse decision affirmed. CASENO: 15-04368.a1 DATE: 06/01/2017 DATE: June 1, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-04368

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On December 14, 2015, DoD 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 decision on the written record. On March 7, 2017, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Gregg A. Cervi denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether Applicant received due process and whether the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant has been employed by a Defense contractor since 2012. She has a daughter, who is 16 years of age. She was unemployed from October 2011 to September 2012. Applicant’s SOR lists several financial problems. In 2004, her inability to pay her bills led her to file for Chapter 7 bankruptcy protection, resulting in a discharge of her debts later that year. She and her boyfriend bought a house in 2007, and she relied on his income for support. After he left in 2008, she fell behind on the mortgage, having lost a job. She continued to live in the house until 2010. The lender foreclosed on the house and sold it in 2014, leaving a deficiency of about $35,000. Applicant has other debts, totaling over $12,000. The Judge found that she had resolved some of them. However, he found that she had not resolved a collection account based upon a personal loan of over $8,800; a debt to a satellite television service; or a collection account to a cell phone provider. The Judge found that Applicant had submitted no evidence of financial counseling, job performance, or character. The Judge’s Analysis As stated above, the Judge resolved some of Applicant’s SOR debts in her favor. However, for those she had not paid, he entered adverse findings. He noted that she had been gainfully employed, except for her unemployment that began in late 2011. He stated that she had not paid her largest debt, nor shown any effort to attempt a settlement or seek advice from a credit counselor. He noted that there was no information in the file about Applicant’s current financial status. When considered alongside evidence of Applicant’s bankruptcy and foreclosure, Applicant’s unresolved debts cast doubt upon her reliability and judgment.

Applicant states that I was unaware that after I had submitted my SOR in 2016 that I would need to keep a written record of the debts that have been resolved and resubmit the updated status . . . During this process it was not suggested that I go to credit counseling, or provide evaluations of character. If it had been suggested to me I would have done this. Appeal Brief at 1. We note that Applicant’s SOR was accompanied by a copy of the Directive, that describes an applicant’s duty to provide evidence in mitigation of concerns arising from her conduct or circumstances, her right to a hearing or to a decision on the record, etc. It also includes guidance on the sort of conditions that could raise concerns under each Guideline, as well as those which would mitigate any such concerns. In addition, the File of Relevant Material (FORM) advised Applicant of her right to provide a documentary response, as did the cover letter that DOHA attached to the FORM. To the extent that her complaint raises an issue about her self-representation, the Directive and the cover letter also advised her of her right to receive advice from counsel or some other personal representative. All in all, Applicant received reasonable notice of her rights and responsibilities. She was not denied the due process afforded by the Directive. See, e.g., ISCR Case No. 15-04472 at 3 (App. Bd. Feb. 9, 2017). Although pro se applicants cannot be expected to act like lawyers, they are expected to take timely, reasonable steps to protect their rights under the Directive. See, e.g., ISCR Case No. 12-02371 at 3 (App. Bd. Jun. 30, 2014). Applicant argues that she has resolved the debts that the Judge found against her, submitting in support a credit report that post-dates the Decision. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. Even so, a Judge is expected to consider not only the extent that debts may have been paid but also the circumstances underlying them (or a lack of evidence thereof) in evaluating the applicant’s judgment and reliability. See, e.g., ISCR Case No. 14-02394 at 3-4 (App. Bd. Aug. 17, 2015). Applicant contends that the Judge made errors about certain things, such as the age of her daughter, her employment history, etc. Even if the Judge made errors of this nature, they did not likely affect the outcome of the case. Therefore, any such errors are harmless. See, e.g., ISCR Case No. 15-00535 at 3 (App. Bd. Mar. 13, 2017). Applicant’s contention that she has worked to address her debts and, therefore, has shown mitigation is not enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-08842 at 3 (App. Bd. Feb. 14, 2017). The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

The Decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. 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