KEYWORD: Guideline F
DIGEST: In spite of the plain language to the contrary, Applicant asserts that he believed in June
and July 2016 that Department Counsel was “working on my behalf.” If Applicant
misunderstood the nature of his rights, the blame cannot fairly be placed on DOHA or other
DOD officials. Applicant was not denied adequate notice of his due process rights. Adverse
decision affirmed.
CASENO: 15-03168.a1
DATE: 07/21/2017
DATE: July 21, 2017
In Re:
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Applicant for Security Clearance
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ISCR Case No. 15-03168
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Shawn C. Graham, Esq.
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On
February 2, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that
decision–security concerns raised under Guideline F (Financial Considerations) of Department of
Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a decision
on the written record.  On April 13, 2017, after considering the record, Defense Office of Hearings
and Appeals (DOHA) Administrative Judge Braden M. Murphy denied Applicant’s request for a
security clearance.  Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raised the following issues on appeal: whether Applicant was denied due process
and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law.  Consistent
with the following, we affirm. 
The Judge’s Findings of Fact
Applicant served in the military until 2004 and upon discharge began working for a Defense
contractor.  He has held a clearance for over 20 years.  Between 2008 and 2010, Applicant engaged
in a custody dispute with the mother of his eldest son.  The resulting legal fees depleted his savings. 
At the same time, Applicant had a dispute with his homeowners association (HOA), and he stopped
making payments to the HOA in order to pay his legal expenses.  
Applicant’s SOR lists a judgment in favor of the HOA in the amount of over $14,400.  The
HOA secured a garnishment action to satisfy this debt.  Although Applicant showed that his wages
had indeed been garnished from early 2015 until mid-2016, he did not provide any documentation
to establish that the judgment had been satisfied or released.  Another SOR debt is a charged-off
credit card account, which Applicant claims has been satisfied.  However, he provided no
documentation to corroborate this claim.
In addition to the above, Applicant failed timely to file his Federal and state income tax
returns.  He discovered this during conversations with IRS officials during the course of submitting
his 2013 returns.  Applicant did not provide evidence that he had filed his 2010 returns.
The Judge’s Analysis
Though noting circumstances outside Applicant’s control that affected his financial situation,
the Judge concluded that Applicant had not demonstrated responsible action in regard to his
problems.  He cited to evidence that Applicant had stopped paying HOA fees in order to pay his
legal expenses during a custody dispute, which the Judge concluded was not a responsible act.  He
also noted that the HOA was forced to obtain a judgment and garnishment action to satisfy the debt
that Applicant owed to it.  He stated that garnishment does not equate to a good-faith effort by an
applicant to resolve past-due debts.  The Judge concluded that Applicant had not demonstrated
resolution of the HOA debt, the credit card debt, and the delinquent tax filing.
Discussion
Applicant has raised an issue of due process.  In doing so, he makes assertions from outside
the record.  We are not permitted to consider new evidence on appeal.  Directive ¶ E3.1.29.
However, we will do so in resolving threshold issues such as jurisdiction or due process.  See, e.g.,
ISCR Case No.14-00812 at 2 (App. Bd. Jul. 8, 2015). 
Applicant claims that he did not understand the procedures that would apply in his case.  He
stated that he believed that DoD officials would inform him whether his SOR response was
sufficient to mitigate the concerns in his case and, if not, he would be authorized to request a
hearing.  He cites to a letter from DOHA to the effect that his SOR response was in compliance with
the Directive.  He argues that this letter failed to advise him that his SOR response was inadequate
and that his case had been referred to DOHA for adjudication.  He states that he believed that he was
entitled to a hearing even after having submitted a documentary response to the File of Relevant
Material (FORM).
We have considered Applicant’s argument in light of the record.  Applicant’s response to
the SOR included a DOHA-prepared attachment in which he requested “a decision based on the
administrative (written) record, without a hearing before an Administrative Judge.  This will include
a memo prepared by DoD Department Counsel.”  The attachment also notified Applicant of his right
to provides documents or other evidence in response to the FORM.  Item 1.
On May 30, 2016, Department Counsel provided Applicant with a copy of the FORM.  Her
memo stated clearly that the FORM was being sent because Applicant had requested such a
procedure rather than a hearing.  Department Counsel also advised Applicant of his right to submit
a documentary response to the FORM.  
The FORM was accompanied by a cover letter from DOHA, dated May 31, 2016.  This is
the letter that Applicant referenced in his argument.  The cover letter advised that his response to
the SOR had been received and that it complied with the Directive.  It also stated the following:
You requested that a determination be made in your case without a hearing. 
[Department Counsel] has been assigned to present the Government’s case and has
prepared a file of what is considered the relevant material which will be submitted
to an Administrative Judge to make the determination in your case.  Before that file
is sent to the Administrative Judge, you have an opportunity to review the attached
copy of that complete file and submit any material you wish the Administrative
Judge to consider or to make any objections you may have as to the information in
the file . . . If you do not file any objections to the attached material or submit any
additional information within 30 days of receipt of his letter, your case will be
assigned to an Administrative Judge for a determination based solely on the attached
[FORM].  
As Applicant notes in his Appeal Brief, he submitted documents in response to the FORM that the
Judge included in the record.  In spite of the plain language to the contrary, Applicant asserts that
he believed in June and July 2016 that Department Counsel was “working on my behalf.”  
The guidance cited above is consistent with the Directive and is couched in the standard
language used when applicants request a decision on the written record.  The SOR attachment that
Applicant signed provided him with a choice between hearing or a FORM, and the notice that
Applicant received from various DOHA officials after he chose a FORM clearly and exclusively
described a written procedure and made no reference to a hearing purportedly in the future. 
Moreover, there is nothing in the record to show that, after Applicant chose a FORM, he changed
his mind and requested to convert the case to a hearing.  If Applicant misunderstood the nature of
his rights, the blame cannot fairly be placed on DOHA or other DoD officials.  Applicant was not
denied adequate notice of his due process rights.  See, e.g., ISCR Case No. 15-04472 at 3 (App. Bd.
Feb. 9, 2017).
Beyond this, we find no reason to disturb the Judge’s weighing of the evidence.  The Judge
examined the relevant evidence and articulated a satisfactory explanation for the decision.  The
decision is sustainable on this record.  “The general standard is that a clearance may be granted only
when ‘clearly consistent with the interests of the national security.’”  Department of the Navy v.
Egan, 484 U.S. 518, 528 (1988).  See also Directive, Encl. 2 App. A ¶ 2(b):  “Any doubt concerning
personnel being considered for national security eligibility will be resolved in favor of the national
security.”
Order
The Decision is AFFIRMED.    
Signed: Michael Ra’anan            
Michael Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: James E. Moody             
James E. Moody
Administrative Judge
Member, Appeal Board
Signed: William S. Fields           
William S. Fields
Administrative Judge
Member, Appeal Board