KEYWORD: Guideline C; Guideline B
DIGEST: Nothing in the Directive gives the Board jurisdiction or authority to pass judgment on
the wisdom or desirability of guidance provided by the ASDC3I.  The Judge sustained an
objection regarding the potential of other persons to have citizenship in a foreign country while
holding a clearance.  The issue in this case regards Applicant’s exercise of foreign citizenship. 
Furthermore a Judge is not obliged to reconcile his decision with other hearing office
adjudication in ostensibly similar cases.  The Judge’s ruling is sustainable.  Adverse decision
affirmed.
CASENO: 05-17030.a1
DATE: 07/02/2007
DATE: July 2, 2007
In Re:
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SSN: ---------
Applicant for Security Clearance
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ISCR Case No. 05-17030
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro Se
The Judge found in Applicant’s favor under Guideline B.  That favorable finding is not at issue on appeal.1
Applicant’s Brief at 1.2
2
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On April 27, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of
the basis for that decision—security concerns raised under Guideline C (Foreign Preference) and
Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a hearing.  On December 11, 2006, after the hearing,
Administrative Judge Martin H. Mogul 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 the requirements of the
Memorandum from the Assistant Secretary of Defense for Command, Control, Communications and
Intelligence, dated August 16, 2000 (ASDC3I Memo) conflict with the language found in the
Directive; whether Applicant was denied due process; whether the Judge’s adverse clearance
decision under Guideline C is arbitrary, capricious or contrary to law.
(1) Applicant argues that the ASDC3I Memo requirement that “. . . clearance be denied or
revoked unless the applicant surrenders the foreign passport or obtains approval for its use from the
appropriate agency of the United States Government” conflicts with the language found in Directive
Guideline C, which states only that possession and/or use of a foreign passport “may” be
disqualifying.  This claim essentially challenges the wisdom or desirability of the guidance provided
by the ASDC3I memo. The Board's jurisdiction and authority are limited to reviewing security
clearance decisions by Hearing Office Administrative Judges. See Directive ¶¶ E3.1.28 - E3.1.35.
Nothing in the Directive gives the Board the jurisdiction or authority to pass judgment on the
wisdom or desirability of guidance provided by the ASDC3I. See ISCR Case No. 99-0480 at 8 (App.
Bd. Nov. 28, 2000). Therefore, the Board does not have the jurisdiction or authority to address
Applicant's appeal argument in this regard.  See, e.g., ISCR Case No. 99-0457 at 5 (App. Bd. Jan.
3, 2001).
(2) Applicant argues that the Judge’s adverse clearance decision should be reversed because:
(a) one of Applicant’s witnesses was not allowed to testify that he knew of a few people who were
granted clearances even though they currently possessed duel citizenship; (b) the Judge did not “help
[Applicant] fully understand why [her] witness’s testimony could not be heard”; (c) Applicant “d[id]
not feel the judge or the defense lawyer truly acted in a casual manner, as [she] was led to believe
they would by [Department Counsel]”; and (d) Applicant’s “ignorance with the jargon involved in
[her] case also tested the patience of the judge.”   The Board construes Applicant’s arguments as2
raising the issue of whether she was denied due process.  However, in that regard, Applicant has not
demonstrated error.
During direct examination, Applicant asked her witness “if there are any persons . . . that
currently are in a situation that I’m in where they either are applying for Clearance or they have
Clearance, but they also have citizenship in foreign countries?”  Department Counsel objected to the
question because it “call[ed] for speculation.”  The Judge sustained the objection on the basis of
Transcript at 57.3
Transcript at 12.4
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relevance and Applicant did not request any further explanation of the ruling from the Judge.   The3
issue of security concern in Applicant’s case was not whether she possessed foreign citizenship, but
the extent to which she had actually “exercised” foreign citizenship.  Moreover, the Board has
previously noted that a decision by a Judge in another case is not legally binding precedent on that
Judge’s colleagues in other cases, even if an applicant can establish close factual similarities between
the cases.  See, e.g., ISCR Case No. 04-04004 at 2 (App. Bd. July 31, 2006).  The Judge was not
legally obligated to reconcile his decision in this case with the decisions of other Judges or
adjudicators in ostensibly similar cases.  See, e.g., ISCR Case No. 02-24752 at 3 (App. Bd. July 31,
2006).  Accordingly, the Judge’s ruling as to the testimony in question is sustainable.
  
 A review of the record indicates Applicant was 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.  See, e.g., ISCR Case
No. 02-17574 at 2 (App. Bd. July 24, 2006).  Applicant fails to identify anything in the record below
that indicates or suggests a basis for a reasonable person to question the fairness, impartiality, or
professionalism of the Judge or the Department Counsel. See, e.g., ISCR Case No. 03-00740 at 2
(App. Bd. June 6, 2006).  
Applicant was given timely notice of the hearing and had received a copy of the Directive.
At the beginning of the hearing, Applicant stated that she was 35-years-old and possessed a Masters
degree in Secondary English Education.  She also stated that she understood that she had a right to
bring an attorney, but that she had decided to represent herself, and that she had read the
government’s documents and generally understood them.  The Judge relaxed the judicial and
technical rules of evidence in order to give the parties the opportunity to develop a full administrative
record.   The record indicates that Applicant answered questions coherently, made an opening and4
closing statement, testified on her own behalf, called and questioned six witnesses, and offered six
documentary exhibits in support of her case.  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, 2003).  The Board has previously
noted that a pro se applicant cannot complain about the quality of self-representation.  See, e.g., 03-
04779 at 3 (July 20, 2005).
(3) Finally, Applicant contends that the Judge failed to properly weigh the evidence in this
case and that his overall unfavorable decision under Guideline C is arbitrary, capricious and contrary
to law.  In support of that contention, Applicant argues that she has a proven track record, that she
is not a threat to the United States, that she has nothing to hide, that her character has stood the test
of time, and that she has earned the trust of the United States Government.  Applicant’s arguments
do not demonstrate the Judge erred.
The application of disqualifying and mitigating conditions does not turn simply on a finding
that one or more of them apply to the particular facts of a case.  Rather, their application requires the
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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 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
nature and seriousness of the disqualifying circumstances, and considered the possible application
of relevant mitigating conditions.  The Judge found in favor of the Applicant under Guideline B.
However, the Judge reasonably explained why the evidence which the Applicant had presented in
mitigation was insufficient to overcome the government’s security concerns under Guideline C.   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 Guidelines C is sustainable.  Thus, the Judge
did not err in denying Applicant a clearance.
Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Jeffrey D. Billett    
Jeffrey D. Billett
Administrative Judge
Member, 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