KEYWORD: Guideline J; Guideline H; Guideline F; Guideline E
DIGEST: The application of the disqualifying and mitigating conditions and whole person
factors does not turn simply on a finding that one more applies to the particular facts of a given
case.  The favorable evidence cited by Applicant is not sufficient to prove that the Judge’s
ultimate decision is not sustainable.  Adverse decision affirmed.
CASENO: 04-12241.a1
DATE: 03/02/2007
DATE: March 2, 2007
In Re:
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SSN: ------
Applicant for Security Clearance
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ISCR Case No. 04-12241
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 July 27, 2005, DOHA issued a statement of reasons (SOR) advising Applicant of the
basis for that decision—security concerns raised under Guideline J (Criminal Conduct), Guideline
H (Drug Involvement), Guideline F (Financial Considerations), and Guideline E (Personal Conduct)
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of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant
requested the case be decided on the written record.  On August 10, 2006, after considering the
record, Administrative Judge Joseph Testan 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 issue on appeal: whether the Judge’s adverse clearance
decision is arbitrary, capricious, or contrary to law.
Applicant elected to have his case decided on the written record, and then did not respond
to the government’s File of Relevant Material (FORM).  On appeal he contends that the Judge mis-
weighed the evidence—arguing that his disqualifying conduct amounted to isolated and aberrational
instances when viewed in the context of his progressive life achievements.  In support of that
contention, Applicant argues that he is a law-abiding, hard-working individual of uprightness,
morals, dignity and a model citizen.  Applicant’s arguments do not demonstrate error on the part of
the Judge.
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,
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 reasonably weighed the mitigating evidence contained in the FORM
against the seriousness of the disqualifying conduct, and considered the possible application of
relevant mitigating conditions.  The Judge found in favor of the Applicant under Guideline H.
However, he reasonably explained why there was insufficient mitigating evidence to overcome the
government’s other security concerns.  The Board does not review a case de novo.  The favorable
evidence cited by the Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary,
capricious, or contrary to law.  Given the record that was before him, the Judge’s ultimate
unfavorable clearance decision under Guidelines J, F and E is sustainable.
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Order
The decision of the Administrative 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