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

ISCR Case No. 00-0353

Appeal Board

Decided Apr 19, 2001 · Administrative Judge Michael Y. Ra'anan · Appeal

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d a rational basis for concluding Applicant's history of unresolved financial difficulties warranted a conclusion that Applicant is not eligible for a sensitive ADP position. Adverse decision affirmed.

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DATE: April 19, 2001

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In Re:

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SSN: -----------

Applicant for ADP Position

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ADP Case No. 00-0353

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT

Peregrine D. Russell-Hunter, Chief Department Counsel

FOR APPLICANT

Pro Se

Administrative Judge Joseph Testan issued a decision, dated December 5, 2000, in which he concluded it is not clearly consistent with the national interest to grant or

continue a designation of trustworthiness, suitability, and eligibility for Applicant to hold a sensitive information systems position. Applicant appealed. For the reasons set

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

The Composite Health Care System Program Office, the Directorate for Industrial Security Clearance Review (now Defense Office of Hearings and Appeals), and the

Assistant Secretary of Defense for Command, Control, Communications and Intelligence entered into a memorandum of agreement (MOA), effective April 9, 1993,

under which the Defense Office of Hearings and Appeals (DOHA) is authorized to adjudicate trustworthiness cases involving contractor personnel working on unclassified

automated systems in ADP-I and ADP-II sensitivity positions as defined in DoD Regulation 5200.2-R. This Board has jurisdiction on appeal by virtue of the MOA,

Department of Defense Directive 5220.6, dated January 2, 1992 (as amended), and DoD Regulation 5200.2-R, dated January 1987 (as amended). Under the MOA,

the procedural provisions of the DoD Directive 5220.6 are applied by DOHA in processing trustworthiness cases. See ADP Case No. 30-1130 (January 4, 2001) at p.

2.

Applicant's appeal presents the issue of whether the Administrative Judge's adverse decision is arbitrary, capricious, or contrary to law.

Procedural History

The Defense Office of Hearings and Appeals issued a Statement of Reasons (SOR) dated August 1, 2000 to Applicant. The SOR was based on Guideline F (Financial

Considerations). A hearing was held on October 19, 2000.

The Administrative Judge issued a written decision, dated December 5, 2000. The Judge found that Applicant had overdue debts totaling $7,966.00 with twelve

creditors that were many years old. He concluded that Applicant recognized her continuing responsibility for these debts but he also concluded that circumstances

indicated that she would be unable to satisfy the debts any time soon and she would thus continue to be under financial stress for the foreseeable future. The Judge then

concluded that it is not clearly consistent with the national interest to make or continue a trustworthiness determination for Applicant, or to make a determination that

Applicant is eligible to occupy a sensitive position. Applicant appealed the Administrative Judge's adverse decision.

Appeal Issue<A HREF="#N_1_"> (1)</A>

Applicant contends on appeal that (1) there is no other evidence of wrongdoing on her part and she is fully committed to making amends for the financial mistakes she

made; (2) a witness testified favorably on her behalf and she has always performed well on the job and has always been discreet; (3) the Administrative Judge was

prejudiced against her because of her national origin; (4) the Administrative Judge erred by concluding that Applicant would be unable to satisfy her outstanding debts in

the foreseeable future since she will be able to do so within 36 months; and (5) the fact that she is unable to pay her debts is not a reason to revoke her eligibility for a

sensitive position and revocation is unnecessary, harsh and inappropriate. The Board construes Applicant's various arguments as raising the issue of whether the Judge's

decision was arbitrary, capricious or contrary to law.

Concerning Applicant's statements that she has engaged in no other wrongdoing and is fully committed to making amends for her overdue debts, neither of these

assertions demonstrate that the Administrative Judge erred when he concluded that Applicant is ineligible for a sensitive position. Even if applicants have not engaged in

other conduct that may have serious negative implications for their eligibility for a sensitive position, it does not follow that a Judge cannot conclude their admitted or

proven conduct makes them ineligible for a sensitive position. See ISCR Case No. 99-0254 (February 16, 2000) at p. 3; ISCR Case No. 98-0476 (December 14,

1999) at p. 4. Additionally, Applican

Appearances

for concluding Applicant's history of unresolved financial difficulties warranted a conclusion that Applicant is not eligible for a sensitive ADP position. Adverse decision affirmed.

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Procedural History

sensitivity positions as defined in DoD Regulation 5200.2-R. This Board has jurisdiction on appeal by virtue of the MOA,

Department of Defense Directive 5220.6, dated January 2, 1992 (as amended), and DoD Regulation 5200.2-R, dated January 1987 (as amended). Under the MOA,

the procedural provisions of the DoD Directive 5220.6 are applied by DOHA in processing trustworthiness cases. See ADP Case No. 30-1130 (January 4, 2001) at p.

2.

Applicant's appeal presents the issue of whether the Administrative Judge's adverse decision is arbitrary, capricious, or contrary to law.

Procedural History

The Defense Office of Hearings and Appeals issued a Statement of Reasons (SOR) dated August 1, 2000 to Applicant. The SOR was based on Guideline F (Financial

Considerations). A hearing was held on October 19, 2000.

The Administrative Judge issued a written decision, dated December 5, 2000. The Judge found that Applic

Appeal Issues

t had overdue debts totaling $7,966.00 with twelve

creditors that were many years old. He concluded that Applicant recognized her continuing responsibility for these debts but he also concluded that circumstances

indicated that she would be unable to satisfy the debts any time soon and she would thus continue to be under financial stress for the foreseeable future. The Judge then

concluded that it is not clearly consistent with the national interest to make or continue a trustworthiness determination for Applicant, or to make a determination that

Applicant is eligible to occupy a sensitive position. Applicant appealed the Administrative Judge's adverse decision.

Appeal Issue<A HREF="#N_1_"> (1)</A>

Applicant contends on appeal that (1) there is no other evidence of wrongdoing on her part and she is fully committed to making amends for the financial mistakes she

made; (2) a witness testified favorably on her behalf and she has always performed well on the job and has always been discreet; (3) the Administrative Judge was

prejudiced against her because of her national origin; (4) the Administrative Judge erred by concluding that Applicant would be unable to satisfy her outstanding debts in

the foreseeable future since she will be able to do so within 36 months; and (5) the fact that she is unable to pay her debts is not a reason to revoke her eligibility for a

sensitive position and revocation is unnecessary, harsh and inappropriate. The Board construes Applicant's various arguments as raising the issue of whether the Judge's

decision was arbitrary, capricious or contrary to law.

Concerning Applicant's statements that she has engaged in no other wrongdoing and is fully committed to making amends for her overdue debts, neither of these

assertions demonstrate that the Administrative Judge erred when he concluded that Applicant is ineligible for a sensitive position. Even if applicants have not engaged in

other conduct that may have serious negative implications for their eligibility for a sensitive position, it does not follow that a Judge cannot conclude their admitted or

proven conduct makes them ineligible for a sensitive position. See ISCR Case No. 99-0254 (February 16, 2000) at p. 3; ISCR Case No. 98-0476 (December 14,

1999) at p. 4. Additionally, Applican

Conclusion

ow that a Judge cannot conclude their admitted or

proven conduct makes them ineligible for a sensitive position. See ISCR Case No. 99-0254 (February 16, 2000) at p. 3; ISCR Case No. 98-0476 (December 14,

1999) at p. 4. Additionally, Applican