KEYWORD: Guideline E; Guideline B; Guideline J
DIGEST: There is a rebuttable presumption that federal officials and employees carry out their
duties in good faith.  DOHA proceedings are civil in nature and applicants are not entitled to the
procedural protections afforded to criminal defendants.  Adverse decision affirmed.
CASENO: 03-21262.a1
DATE: 07/10/2007
DATE: July 10,2007
In Re:
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SSN: -----
Applicant for Security Clearance
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ISCR Case No. 03-21262
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Nichole L. Noel, Esq., Department Counsel
FOR APPLICANT
Pro Se
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On April 20, 2004, DOHA issued a statement of reasons advising Applicant of the basis
for that decision—security concerns raised under Guideline E (Personal Conduct), Guideline B
(Foreign Influence) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6
(Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.  On December 29, 2006, after
The Judge found in favor of the Applicant under Guidelines B and J.  Those favorable findings are not at issue1
on appeal.  In his appeal brief, Applicant offers new evidence in the form of additional explanations concerning the
circumstances in his case.  The Board may not consider new evidence on appeal.  See Directive ¶ E3.1.29.  Its submission
does not demonstrate error on the part of the Judge.  See, e.g., ISCR Case No. 02-12789 at 3 (App. Bd. May 13, 2005).
Applicant’s Brief at 1.2
Id at 3.3
Id at 1.4
Id.5
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the hearing, Administrative Judge Christopher Graham denied Applicant’s request for a security
clearance.   Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.1
Applicant raised the following issues on appeal: whether Applicant was denied due process;
whether the Judge erred in concluding Applicant’s falsification of his security clearance application
was deliberate; whether the Judge’s adverse security clearance decision is arbitrary, capricious or
contrary to law.
Applicant contends he was denied due process.  In that regard, he argues that Department
Counsel led him to believe that representation by counsel had little effect in cases such as his and
could actually prove to be detrimental.   He also argues that at the hearing Department Counsel2
raised his voice and acted unprofessionally, and attempted to sway the Judge with emotional
arguments.    Finally, Applicant argues that because of his extreme anxiety at the hearing, he did not3
notice that Department Counsel had not presented all the evidence relevant to Applicant’s case.4
Applicant does not specifically identify this evidence but attaches copies of what are presumably the
missing items of evidence with his brief.  The Board does not find Applicant’s arguments persuasive.
There is a rebuttable presumption that federal officials and employees carry out their duties
in good faith. See, e.g., ISCR Case No. 00-0030 at 5 (App. Bd. Sept. 20, 2001).  A party seeking to
rebut that presumption has a heavy burden of persuasion on appeal.  Applicant has not met that
heavy burden.  In his brief, Applicant states that his decision to proceed pro se was also due to “the
financial impossibility of my retaining a lawyer.”   The documents which Applicant attaches with5
his brief were in fact made part of the record of the case.  Applicant fails to identify anything in the
record below that indicates or suggests a basis for a reasonable person to conclude that Department
Counsel had acted improperly, unfairly or unprofessionally.  See, e.g, ISCR Case No. 05-04923 at
3, n. 4 (App. Bd. Apr. 24, 2007); ISCR Case No. 03-21329 at 2 (App. Bd. Sept. 25, 2006).
DOHA proceedings are civil in nature and applicants are not entitled to the procedural
protections afforded to criminal defendants.  See, e.g., ISCR Case No. 02-12199 at 5-6 (App. Bd.
Oct. 7, 2004).  Therefore, claims of ineffective assistance of counsel are of no moment.  See, e.g.,
ISCR Case No. 02-17574 at 2 (App. Bd. July 24, 2006).  A review of the record indicates that
Applicant was provided with the procedural rights set forth in Executive Order 10865 and the
Directive, as well as prehearing guidance (which advised that Applicant could appear by himself,
with an attorney he selected and paid for, or with a personal representative).  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. 00-0593 at 4 (App. Bd. May 14,
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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, 2003).
Because Applicant did not raise his concerns with the Judge during the hearing, or otherwise object
to proceeding, he was not denied due process under the Directive or Executive Order.  See, e.g.,
ISCR Case No. 03-04927 at 3 (App. Bd. Mar. 4, 2005)(No denial of due process where pro se
Applicant claimed “. . . she was no match for the ‘very serious and prepared professionals’ who
represented the government”).
(2) Applicant also contends that he did not deliberately falsify his security clearance
application by failing to disclose he had previously been terminated from a job because he had
misrepresented his education on an application/resume.  In support of this contention, he argues that
the omission of the information was due to a misunderstanding on his part, he has openly
acknowledged his mistake in that regard, and he subsequently provided the correct information.
Applicant’s arguments do not demonstrate error on the part of the Judge.
The Judge had the opportunity to consider Applicant’s explanation for why he failed to
disclose the information in question.  The Judge was not bound, as a matter of law, to accept or reject
Applicant’s explanation.  The Judge considered Applicant’s explanation in light of the record
evidence as a whole, and concluded there was a sufficient basis to find that Applicant’s omission was
deliberate and intentional.  On this record, the Judge’s finding of deliberate falsification is
sustainable.  See Directive ¶ E3.1.32.1; ISCR Case No. 04-03849 at 2-3 (App. Bd. Jan. 26, 2006).
The security concern raised by Applicant’s falsification was not necessarily overcome by Applicant’s
subsequent disclosures to the government.  See ISCR Case No. 01-19513 at 5 (App. Bd. Jan. 22,
2004).  
(3) Finally, Applicant argues that the security concerns raised by his disqualifying conduct
under Guideline E are outweighed by the favorable evidence he presented, including his 23 years of
faithful and diligent service.  Again, Applicant’s argument does not demonstrate error on the part
of the Judge.
“[T]here is a strong presumption against granting a security clearance.” Dorfmont v. Brown,
913 F. 2d 1399, 1401 (9  Cir. 1990), cert. denied, 499 U.S. 905 (1991).  Once the governmentth
presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.
Directive ¶ E3.1.15.  The application of disqualifying and mitigating conditions and whole-person
factors does not turn simply on a finding that one or more of them apply to the particular facts of a
case.  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 security clearance decision.
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 weighed the mitigating evidence offered by Applicant against the
recency and seriousness of the disqualifying conduct, and considered the possible application of
relevant mitigating conditions and whole-person factors.  The Judge found in favor of the Applicant
under Guidelines B and J.  However, the Judge reasonably explained why the evidence which the
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Applicant had presented in mitigation was insufficient to overcome the government’s other security
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 clearance decision under Guideline E sustainable.
Order
The decision of the Judge denying Applicant a clearance 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