A decided public DOHA case, shown for research, not advice or a prediction.

ISCR Case No. 00-0086

Appeal Board

Decided Dec 13, 2000 · Administrative Judge Michael Y. Ra'anan · Appeal

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Appeal at a glance

The appeal involved an applicant who was denied a security clearance due to personal and criminal conduct. The applicant, representing himself, argued that he was not properly represented and requested a remand for new representation. The Board affirmed the Administrative Judge's decision, finding no harmful error in the proceedings.

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Appearances

ed to give the party a second chance to present its case. There is no presumption of error below and the appealing party has obligation to raise and demonstrate error. Adverse decision affirmed.

Procedural History

="CENTER">APPEARANCES

FOR GOVERNMENT

Peregrine D. Russell-Hunter, Esq., Chief Department Counsel

FOR APPLICANT

Pro Se

Administrative Judge Roger C. Wesley issued a decision, dated August 16, 2000, in which he concluded it is not clearly c

Appeal Issues

sistent

with the national interest to grant or continue a security clearance for Applicant. Applicant appealed. For the reasons set forth

below, the Board affirms the Administrative Judge's decision.

This Board has jurisdiction on appeal under Executive Order 10865 and Department of Defense Directive 5220.6 (Directive),

dated January 2, 1992, as amended.

Applicant's appeal presents the issue of whether the Board should remand the case to the Administrative Judge so that Applicant

can have a new hearing where he is represented by a lawyer.

<CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued a Statement of Reasons (SOR) dated March 3, 2000 to Applicant. The SOR

was based on Guideline E (Personal Conduct) and Guideline J (Criminal Conduct).

A hearing was held on June 28, 2000. The Administrative Judge issued a decision, dated August 16, 2000, in which he concluded

it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant. The case is before the

Board on Applicant's appeal from the Judge's adverse decision.

<CENTER>Appeal Issue</CENTER>

On appeal, Applicant does not specifically challenge any of the Administrative Judge's findings and conclusions. Rather,

Applicant asserts: (1) he was not properly represented at the hearing; (2) even though he told the Judge at the hearing that he could

represent himself, he soon realized that he could not represent himself at all; (3) he felt "very intimidated" by Department Counsel

at the hearing; (4) prior to the hearing, he tried to retain legal counsel, but was not successful; and (5) he was left to prepare for the

hearing while he was maintaining a household and was between two jobs. Applicant states that he can prove his case with proper

counsel. Applicant's assertions raise the issue of whether the Board should remand the case to the Judge so that Applicant can

have a new hearing where he is represented by a lawyer.

All applicants are expected to take reasonable steps to protect their rights during DOHA proceedings. An applicant's pro se status

does not excuse an applicant from the obligation to take timely, reasonable steps to protect his or her rights. See, e.g., DISCR

Case No. 90-1727 (November 1, 1991) at p. 2; DISCR Case No. 90-0473 (August 14, 1991) at p. 2. Although the Sixth

Amendment right to assistance of counsel does not apply to DOHA proceedings, an applicant has a nonconstitutional right to

retain a lawyer at his or her own expense. ISCR Case No. 98-0515 (March 23, 1999) at p. 3. That important right can be waived

by an a

Conclusion

satisfies due process requirements if the complainant merely declines or fails to take advantage of the administrative procedure."),

cert. denied, 459 U.S. 1017 (1982).

None of Applicant's assertions on appeal demonstrate that he was denied the opportunity to retain a lawyer to represent him, or

that he was denied the opportunity to prepa