KEYWORD: Guideline B
DIGEST: The Judge found that Applicant’s mother, father brother and sister-in-law are citizens
and residents of China Further the Judge found that Applicant had traveled to China for over a
year in 2003-4.  On appeal Applicant offers new evidence regarding her parents’ status and her
dates of travel.  Applicant requests that the Board set aside the Judge’s decision in light of the
new evidence.  The Board cannot grant the relief requested.  Adverse decision affirmed.
CASENO: 06-22581.a1
DATE: 11/02/2007
DATE: November 2, 2007
In Re:
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Applicant for Public Trust Position
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ADP Case No. 06-22581
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Candace Le’i, Esq. 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 December 14,
2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that
People’s Republic of China.1
Applicant’s Answer at 1-2 (Government Exhibit 3).2
Decision at 3.3
Id at 3, n. 4; Government Exhibit 4.4
2
decision—trustworthiness concerns raised under Guideline B (Foreign Influence) of Department of
Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested the case be
decided on the written record.  On May 22, 2007, after considering the record, Administrative Judge
David M. White 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 issue on appeal: whether the Board can consider new evidence
on appeal.
In this case, SOR paragraphs 1.a and 1.b alleged trustworthiness concerns based on the fact
that Applicant’s mother, father, brother, and sister-in-law were citizens and residents of China.1
SOR paragraph 1.c alleged trustworthiness concerns based on the fact that Applicant had traveled
to China in 2003.  Applicant admitted without explanation to all three allegations.   2
In his decision, the Judge found that Applicant had “. . . reported and admitted that she
traveled to China for pleasure from August 16, 2003 to September 7, 2004”—a period of over a
year.   The Judge based this finding on the dates provided by the Applicant in her Public Trust3
Position Application (SF-85P).   On appeal, Applicant states that she mistakenly typed the wrong4
date on her application—2004 instead of 2003.  In reality, she had only traveled to China from
August 16, 2003 to September 7, 2003, a period of less than a month.  In support of her statement,
she attaches a copy of her Chinese Passport, showing the relevant entry and exit stamps.  Applicant
also states that her parents “. . . just immigrated to the US and received their green cards.”  Both
Applicant’s statements and her attachment are new evidence which was not considered by the Judge
below.  Applicant requests that the Board set aside the Judge’s adverse decision, based on this new
evidence.  However, her appeal brief articulates no legal basis in support of that request. 
      
Applicant elected to have her case decided on the written record, and then declined to file a
response to the government’s File of Relevant Material (FORM).  Her request for relief as to the
mistaken travel dates is not based on newly discovered evidence, unavailable to her prior to the
Judge’s decision.  Rather, it is based on evidence which was in her custody and control during the
entire pendency of her case.  While that evidence bears directly on the trustworthiness concern
alleged in SOR paragraph 1.c, it would not substantially mitigate the trustworthiness concerns set
forth in SOR paragraphs 1.a and 1.b.  Moreover, a review of the Judge’s decision indicates that he
questioned the accuracy of the dates at issue, suggesting that Applicant’s trip to China may actually
have been of shorter duration: “The information concerning the dates of her travel to China, provided
by Applicant in Gov X 4, may be in error.  It appears inconsistent that she could have become a
naturalized U.S. citizen in June 2004 if she was traveling in China from August 2003 through
Decision at 3, n. 9.  The Judge then went on to note that Applicant had provided no clarifying or corrective5
information in response to either the SOR or the FORM.
3
September 2004.”5
The Appeal Board’s authority to review a case is limited to cases in which the appealing party
has alleged the Judge committed harmful error.  It does not review cases de novo.  The Board may
not consider Applicant’s new evidence on appeal.  See Directive ¶ E3.1.29.  Its submission does not
demonstrate error on the part of the Judge.  See, e.g., ADP Case No. 06-08653 at 3 (App. Bd. May
14, 2007).  Accordingly, the Board cannot grant Applicant the relief she requests.
Order
The decision of the Judge denying Applicant access to automated information systems in
ADP-I/II/III sensitivity positions is AFFIRMED.
Signed: Michael D. Hipple      
Michael D. Hipple
Administrative Judge
Member, Appeal Board
Signed: Jean E. Smallin           
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: William S. Fields          
William S. Fields
Administrative Judge
Member, Appeal Board