KEYWORD: Guideline G; Guideline F; Guideline E
DIGEST: The challenged findings are either permissible characterizations or harmless error.  An
applicant’s disagreement with the Judge’s weighing of the evidence is not sufficient to
demonstrate error.  The Judge’s finding of deliberate falsification is sustainable.  Adverse
decision affirmed.
CASENO: 05-02593.a1
DATE: 03/09/2007
DATE: March 9, 2007
In Re:
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SSN: ------
Applicant for Security Clearance
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ISCR Case No. 05-02593
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Melvin A. Howry, Esq., Department Counsel
FOR APPLICANT
Kevin M. Sherlock, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On October 20, 2005, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision—security concerns raised under Guideline G (Alcohol Consumption),
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Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of
Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested that the case
be decided on the written record.  On June 21, 2006, after considering the record, Administrative
Judge Charles D. Ablard 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 with respect to his
material findings; whether the Judge erred by concluding that the security concerns raised under
Guidelines G and F had not been mitigated; whether the Judge erred in concluding Applicant’s
falsification of his security clearance application was deliberate.
(1) Applicant argues that the Judge’s adverse clearance decision should be reversed because
the Judge made several errors with respect to his findings.  Specifically, Applicant contends that the
Judge erred in finding that one of Applicant’s debts had not been discharged in bankruptcy.  He also
contends that the Judge erred in finding that Applicant’s consumption of alcohol to the point of
intoxication was anything other than “occasional.”  In support of the first contention, Applicant
attaches new evidence in the form of bankruptcy records which indicate the debt in question was in
fact discharged.  The Board concludes that Applicant has not demonstrated harmful error on the part
of the Judge.
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., ISCR Case No. 02-
12789 at 3 (App. Bd. May 13, 2005).  The findings which Applicant challenges are either
permissible characterizations by the Judge or harmless error, in that they would not be reasonably
likely to change the outcome of the case.  Applicant has not met his burden of demonstrating that
the Judge’s material findings with respect Applicant’s circumstances 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 contends that the Judge erred in concluding that the security concerns raised
under Guidelines G and F had not been mitigated.  In support of that contention, Applicant
essentially restates the facts of his case and argues that the Judge mis-weighed the evidence, by
failing to given adequate consideration to the favorable evidence.  Based upon the record as a whole,
Applicant asserts that his conduct was not of sufficient seriousness to be of security concern.
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 against the seriousness
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of the disqualifying conduct, and considered the possible application of relevant mitigating
conditions.  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.  See, e.g., ISCR Case No. 02-28041 at 4 (App. Bd. June 29, 2005).
Given the record that was before him, the Judge’s ultimate unfavorable clearance decision under
Guidelines G and F is sustainable.
(3) Finally, Applicant argues that he did not deliberately falsify his security clearance
application by failing to disclose adverse information about his financial problems.  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 on his security clearance application.  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 finding
of deliberate falsification is sustainable.  See Directive ¶ E3.1.32.1.  Applicant has not demonstrated
that the Judge’s unfavorable clearance decision under Guideline E is arbitrary, capricious, or contrary
to law.   
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