KEYWORD: Guideline E; Guideline J
DIGEST: Considering the record evidence as a whole, the Judge’s material findings of security
concern are sustainable.  The security concerns raised by Applicant’s falsification were not
necessarily overcome by his subsequent disclosures.  The favorable evidence cites by Applicant
is not sufficient to demonstrate that the Judge’s decision was arbitrary capricious or contrary to
law.  Adverse decision affirmed.
CASENO: 04-00949.a1
DATE: 03/27/2007
DATE: March 27, 2007
In Re:
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SSN: -------
Applicant for Security Clearance
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ISCR Case No. 04-00949
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 18, 2005, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision—security concerns raised under Guideline E (Personal Conduct) and
Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
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amended) (Directive).  Applicant requested a hearing.  On July 31, 2006, after the hearing,
Administrative Judge Joan Caton Anthony denied Applicant’s request for a security clearance.
Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raised the following issues on appeal: whether the Judge erred in her findings;
whether the Judge erred in concluding Applicant’s falsification of his security clearance application
was deliberate; whether the Judge erred by concluding that the security concerns raised under
Guidelines E and J had not been mitigated.
(1) Applicant asserts that the Judge erred with respect to a number of findings relating to the
nature, circumstances, and timing of Applicant’s April 2001 arrest on four felony counts of “Child
Abuse Parent.”  However, even if each of the challenged findings of fact were changed to reflect
Applicant’s interpretation of the record evidence, it would not have undermined the Judge’s
conclusions.  Therefore, any such error would be at best harmless.  See ISCR Case No. 05-08459 at
2, n. 1 (App. Bd. Nov. 16, 2006).  Applicant has not met his burden of demonstrating that the
Judge’s material findings with respect to Applicant’s conduct of security concern do not reflect a
reasonable or plausible interpretation of the record evidence.  Considering the record evidence as a
whole, the Judge’s material findings of security concern are sustainable.
(2) Applicant also contends that he did not deliberately falsify his security clearance
application by failing to disclose adverse information in response to three different questions.  In
support of this contention, he argues that the omission of the information was due to a
misunderstanding on his part, and he subsequently provided the correct information.  The Board does
not find this argument persuasive.
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 findings of deliberate falsification are
sustainable.  See Directive ¶ E3.1.32.1; ISCR Case No. 04-03849 at 2-3 (App. Bd. Jan. 26, 2006).
The security concerns raised by Applicant’s falsification were 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 contends that the Judge erred in concluding that the security concerns
raised by his falsifications had not been mitigated.  In support of that contention, Applicant argues
that his falsifications were an isolated incident outweighed by the favorable evidence presented by
the Applicant.  The Board does not find these arguments persuasive.
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,
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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.  The Judge reasonably explained why the evidence which the
Applicant had presented in mitigation was insufficient to overcome the government’s 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. Jun. 29, 2005).  Given the record that was
before her, the Judge’s ultimate unfavorable clearance decision under Guidelines E and J is
sustainable.
Order
The decision of the Judge denying Applicant a clearance is AFFIRMED.
Signed: Jean E. Smallin    
Jean E. Smallin
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