KEYWORD: Guideline F
DIGEST: The Judge reasonably concluded that Applicant was making a knowing and intelligent
waiver of the 15 days notice requirement.  Applicant has not established the Judge’s conclusions
are arbitrary or contrary to law.  Adverse decision affirmed.
CASENO: 05-12037.a1
DATE: 05/10/2007
DATE: May 10, 2007
In Re:
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SSN:------
Applicant for Trustworthiness Designation
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ADP Case No. 05-12037
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro Se
The Defense Office of Hearings and Appeals (DOHA) proposed to deny or revoke access to
automated information systems in ADP-I/II/III sensitivity positions for Applicant.  On February 9,
2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that
decision—trustworthiness 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 October 31, 2006, after the hearing,  Administrative Judge Paul J. Mason
Applicant’s Brief at 1.1
Transcript at 5.2
Transcript at 5-8.3
Transcript at 8.4
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denied Applicant’s request for a trustworthiness designation.  Applicant timely appealed pursuant
to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raised the following issues on appeal: whether Applicant was denied due process;
whether the Judge’s adverse trustworthiness determination is arbitrary, capricious, or contrary to law.
(1) Applicant argues that she was denied due process because she did not receive 15 days
advance notice of the time and place of the hearing, and that she felt pressured to go ahead with the
hearing anyway.  In support of this argument, she contends that she was unaware of the 15 day notice
requirement prior to arriving at the hearing, and had she known about it, “[she] could have done
more for [her] case.”1
Directive ¶ E3.1.8 states that an “applicant shall be notified at least 15 days in advance of the
time and place of the hearing . . .”  The Directive does not specify the form that notice must take.
Although the 15 day notice requirement is important, the Board has previously noted that an
applicant may waive that requirement.  See ISCR Case No. 04-12732 at 8 (App. Bd. Nov. 2, 2006).
In this case, the date on the Notice of Hearing was August 14, 2006, and the hearing was held
on August 30, 2006.  At the beginning of the hearing, Department Counsel brought those facts to the
attention of the Judge, and acknowledged that as a practical matter Applicant could not have received
the Notice of Hearing more than 15 days in advance of the hearing.  However, Department Counsel
also informed the Judge that he had verbally advised Applicant of the hearing date in late July or
early August of 2006, suggesting that Applicant had more than 15 days of actual notice as to the
hearing date.   At that point, the Judge examined the relevant documents, gave the Applicant an2
extensive explanation of the 15 day notice requirement, and concluded that insofar as the written
Notice of Hearing was concerned, it was in “technical violation” of ¶ E3.1.8.   3
The Judge then asked Applicant if she recalled being verbally advised of the hearing date by
Department Counsel.  Applicant answered that she did, and confirmed that the conversation took
place “towards the last part of July.”  In response to further questioning by the Judge, Applicant
acknowledged she had been “informed” of and was “aware” of the “upcoming hearing more than 15
days in advance of [the date].”   At that juncture, the Judge asked Applicant if she was willing to4
waive the 15 day notice requirement and proceed with the hearing.  Applicant answered in the
affirmative.  The relevant portion of the transcript is as follows:
JUDGE: Okay.  So my question is, do you waive - which means do you give up - to
you relinquish your right to have a hearing 15 days out from when you’re told of
when the hearing is to occur?
Transcript at 9.5
The Judge found in favor of Applicant with respect to SOR paragraph 1.a.  That favorable finding is not at issue6
on appeal.
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APPLICANT: Yes, sir, I waive that.
JUDGE: Okay.  Now, do you understand what I’ve said?
APPLICANT: Yes, sir.
JUDGE: All right.  Well, that means we’re going to go forward with the hearing
today.  And you don’t have a problem, even though technically you didn’t receive the
Notice of Hearing on time?
APPLICANT: Yes, sir.
JUDGE: Okay.  I am satisfied that you understand the basis of your waiver and that
you have waived you right to a 15-day period.5
After reviewing the record in this case, the Board concludes that Applicant was reasonably
provided with the procedural rights set forth in Executive Order 10865 and the Directive, and that
the Judge conducted the hearing in a professional manner, consistent with his role as an impartial
presiding official.  The Judge diligently inquired into the issues of notice and waiver.  Based upon
the representations he received from  Applicant, he reasonably concluded that Applicant was making
a knowing and intelligent waiver of the 15 days notice requirement, and was ready and willing to
proceed with the hearing. See, e.g., ISCR Case No. 02-17574 at 2 (App. Bd. July 24, 2006);
Compare ISCR Case No. 04-12732 at 8 (App. Bd. Nov. 2, 2006).  
Although pro se applicants cannot be expected to act like a lawyer, they are expected to take
timely, reasonable steps to protect their rights under the Directive.  See, e.g., ISCR Case No. 00-0593
at 4 (App. Bd. May 14, 2001).  If they fail to take timely, reasonable steps to protect their rights, that
failure to act does not constitute a denial of their rights.  See, e.g., ISCR Case No. 02-19896 at 6
(App. Bd. Dec. 29, 2001).  Because Applicant did not object to proceeding or otherwise request a
continuance of her case, she was not denied due process under the Directive or Executive Order.  
(2) Applicant also argues that the Judge’s adverse trustworthiness determination should be
reversed because Applicant has acknowledged responsibility for her debts, taken responsible action
to prevent a recurrence of her debt problems in the future, and will keep looking into credit agencies
that she can afford.   Applicant’s argument does not demonstrate error on the part of the Judge. 6
Applicant has not met her burden of demonstrating that the Judge erred in concluding that
the financial considerations allegations had not been mitigated.  Although Applicant strongly
disagrees with the Judge’s conclusions, she has not established that those conclusions are arbitrary,
capricious, or contrary to law.  See Directive ¶ E3.1.32.3.
The application of disqualifying and mitigating conditions does not turn simply on a finding
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that one or more of them applies to the particular facts of a case.  Rather, their application requires
the exercise of sound discretion in light of the record evidence as a whole.  See, e.g., ISCR Case No.
01-14740 at 7 (App. Bd. Jan.15, 2003).  Thus, the presence of some mitigating evidence does not
alone compel the Judge to make a favorable trustworthiness determination.  As the trier of fact, the
Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs
the unfavorable evidence, or vice versa.  An applicant’s disagreement with the Judge’s weighing of
the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to
demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary,
capricious, or contrary to law.
In this case, the Judge found that Applicant had a lengthy and serious history of not meeting
financial obligations.  At the time the case was submitted for decision, Applicant still had significant
unpaid debts.  In light of the foregoing, the Judge could reasonably conclude that Applicant’s
financial problems were still ongoing.  The Judge weighed the mitigating evidence offered by
Applicant against the length and seriousness of the disqualifying conduct and considered the possible
application of relevant mitigating conditions.  The Judge found in favor of Applicant with respect
to one of the allegations in the SOR.  However, the Judge articulated a rational basis for not fully
applying any mitigating conditions in this case, and reasonably explained why the evidence which
the Applicant had presented in mitigation was insufficient to overcome the government’s
trustworthiness concerns.  The Board does not review a case de novo.  The favorable record evidence
cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or
contrary to law.  See, e.g., ISCR Case No. 02-28041 at 4 (App. Bd. June 29, 2005).  Given the record
that was before him, the Judge’s ultimate unfavorable trustworthiness determination under
Guidelines F is sustainable.  Thus, the Judge did not err in denying Applicant a trustworthiness
designation.
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Order
The decision of the Judge denying Applicant a trustworthiness designation is AFFIRMED.
Signed: Michael Y. Ra’anan    
Michael Y. Ra’anan
Administrative Judge
Chairman, Appeal Board
Signed: William S. Fields           
William S. Fields
Administrative Judge
Member, Appeal Board
Signed: James E. Moody            
James E. Moody
Administrative Judge
Member, Appeal Board