KEYWORD: Guideline F; Guideline E
DIGEST: 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; if they fail to take such
steps, that failure does not constitute denial of their rights.  Adverse decision affirmed
CASENO: 08-03233.a1
DATE: 08/07/2009
DATE: August 7, 2009
In Re:
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Applicant for Security Clearance
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ISCR Case No. 08-03233
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) declined to grant Applicant a security
clearance.  On October 28, 2008, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision—security concerns raised under Guideline F (Financial Considerations)
1 The Judge found in Applicant’s favor as to the SOR allegation of falsification under Guideline E concerning
the IRS lien.  
2
and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as
amended (Directive).  Applicant requested a hearing.  On April 30, 2009, after the hearing,
Administrative Judge Roger C. Wesley denied Applicant’s request for a security clearance.
Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
On appeal, Applicant raises the following issues: whether she was afforded due process
before and during the hearing; whether the Judge was biased against her because she is
transgendered; and whether the Judge should have found her financial situation to be mitigated
because the accrual of her debts was beyond her control.  Applicant lists a number of reasons why
she feels the hearing was unfair to her.
The Judge made the following pertinent findings of fact:  Applicant is a retired non-
commissioned officer with over 24 years of service.  After retiring from military service, Applicant
underwent a change in gender identity, from male to female.  Applicant’s 30-year marriage ended,
and Applicant has since married another woman.  Applicant worked sporadically between 1991 and
1998.  Following a steady job lasting 16 months, Applicant again had a number of short-term jobs.
She now works steadily for a defense contractor.  Applicant’s military retirement of $753 per month
is divided between her and her former spouse.  Applicant’s SOR lists over $45,000 in debts, many
of which Applicant admits.  Applicant’s debt of over $11,000 to the Internal Revenue Service (IRS),
which has been reduced to a  lien,  arose during periods of sporadic employment while Applicant
was still married to her first wife.  As part of the divorce agreement, Applicant accepted
responsibility for the whole debt.  Another debt is for over $20,000.  A few of the debts are
duplications, as to which the Judge found in Applicant’s favor.  Applicant has hired an attorney to
settle her IRS debt, and a debt consolidation company to settle other debts.  Neither the attorney nor
the debt consolidation company had achieved any results at the time of the hearing.  Applicant failed
to disclose the IRS lien on her security clearance application.1
Applicant appeared pro se.  However, Applicant’s spouse, who was also a character witness,
appeared with Applicant as a personal representative.  In her appeal brief, Applicant lists several
reasons why she feels the hearing process was unfair.  1.  Applicant expresses concern over the fact
that the Judge explained the appeal process at the very beginning of the hearing.  2.  Although she
requested that the hearing be held in City A, she was inconvenienced by having to travel from City
A to City B for the hearing, a distance of 90 miles.  3.  The Judge was “cordial,” but Department
Counsel was “defensive and disrespectful.”  4.  Applicant was “cut off” from presenting her whole
argument because of time limitations.  The hearing started late in the day and had to end by the time
the building closed for the day.  The hearing could not continue the next day because Department
Counsel had another hearing scheduled in another city.  5.  Applicant was harmed because the record
was only held open for two weeks for Applicant to provide additional evidence, and that was not
enough time for her to acquire the evidence she sought to provide. 
2The Pre-Hearing Guidance for DOHA Industrial Security Clearance (ISCR) Hearings and Trustworthiness
(ADP) Hearings, as posted on DOHA’s website and provided to applicants states that hearings are generally held within
150 miles of an applicant’s residence or place of employment.  City A and City B are about 90 miles apart.
3In the Transcript at 76-79, the Judge suggested a period of 14 days for Applicant to submit character references
and information about her military career.  Applicant agreed.  The Judge then pointed out that if Applicant could not meet
the deadline she should contact Department Counsel and “we’ll resolve it.”  During testimony regarding Applicant’s
financial situation, the Judge referred to the 14-day period several times.  Applicant never objected to the length of time
allowed.  Transcript at 119, 131, 133-134, 177-178.
4Transcript at , e.g., 41, 171, 172, 173.
3
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; if they fail to take such steps, that
failure does not constitute denial of their rights.  See, e.g., ISCR Case No. 03-21329 at 2 (App. Bd.
Sep. 25, 2006).  In this case, a hearing was begun in City A on January 28, 2009, but the case was
continued because Applicant did not receive copies of the government’s evidence until that day.
The hearing was rescheduled in City B on February 25 based on a telephone call to which Applicant
was a party.2  The hearing began at 12:57 pm, just before the scheduled time of 1:00 pm.  The Judge
told the parties that the courtroom had to be vacated by 5:00 pm.  After Applicant provided
documentary evidence, testified on her own behalf, and elicited testimony from her spouse, the
Judge asked Applicant whether she had any additional evidence to present.  Applicant responded
in the negative.  Transcript at 170.  The hearing was adjourned at 4:23 pm.  Applicant did not
request more time to present evidence that afternoon or at a later time.  The Judge discussed with
Applicant the length of time for which the record would be held open for Applicant to submit
additional evidence.3 Applicant did not object to a period of 14 days.  Since Applicant did not object
at the hearing to actions such as the adjournment and the 14-day period, she cannot now argue that
her right to due process was violated by those actions.  After a review of the record, the Board finds
no indication that Applicant was denied due process. 
Moreover, there is a rebuttable presumption that federal officials and employees carry out
their duties in good faith.  See, e.g., ISCR Case No. 07-07635 at 3 (App. Bd. Aug. 22, 2008).  A
party seeking to rebut that presumption has a heavy burden of persuasion on appeal.  Applicant
characterizes Department Counsel as “defensive and disrespectful,” and states that Department
Counsel referred to Applicant as “he” rather than “she.”  Applicant’s characterization of Department
Counsel’s manner is not demonstrative of error by the Judge.  In the transcript, Department Counsel
refers to Applicant as “she,” “her” and “Ms.”4  Applicant has not met her burden of persuasion,
because she has not identified anything in the record that suggests a basis for a reasonable person
to conclude that Department Counsel acted improperly, or engaged in a course of conduct that had
the effect of denying Applicant due process.
To the extent that Applicant raises an allegation of bias on the part of the Judge, there is a
rebuttable presumption that quasi-judicial officials are unbiased and impartial, and a party seeking
to rebut that presumption has a heavy burden on appeal.  When the Board considers a claim of bias,
the standard is not whether the appealing party personally believed that the Judge was biased.
5DOHA Judges regularly explain the appeal process, along with other administrative matters, at the beginning
of hearings.
4
Rather, the standard is whether the record contains any indication that the Judge acted in a manner
that would lead a disinterested person to question the fairness or impartiality of the Judge.5  See, e.g.,
ISCR Case No. 06-25545 at 2 (App. Bd. Nov. 2, 2007).  In this case, Applicant offers no explanation
for her claim of bias other than the adverse decision.  In fact, Applicant states that the Judge was
“cordial.”  Applicant has not demonstrated bias.
Applicant also maintains in her appeal brief that the accrual of her debts was beyond her
control.  This is an argument in favor of mitigation of her financial situation.  However, 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.  See, e.g., ISCR Case No.
06-10320 at 2 (App. Bd. Nov. 7, 2007).  In his decision, the Judge discussed the possible application
of the relevant mitigating conditions in Applicant’s case and explained why the evidence of
mitigation was not sufficient to overcome the government’s security concerns. 
After reviewing the record, the Board concludes that the Judge examined the relevant data
and articulated a satisfactory explanation for his decision, “including a ‘rational connection between
the facts found and the choice made.’”  Motor Vehicle Mfrs. Ass’n of the United States v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States,
371 U.S. 156, 168 (1962)).  The Judge’s adverse decision is sustainable on this record.  See also
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance
may be granted only when ‘clearly consistent with the interests of the national security.’”). 
Order
The Judge’s decision denying Applicant a security clearance is AFFIRMED. 
Signed: Michael Y. Ra’anan      
Michael Y. Ra’anan
Administrative Judge
Chairman, Appeal Board
Signed: Jeffrey D. Billett           
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
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Signed: Jean E. Smallin             
Jean E. Smallin
Administrative Judge
Member, Appeal Board