KEYWORD: Guideline E
DIGEST: The Judge’s challenged findings are supported by substantial evidence.  The Judge’s
favorable findings on some allegations are not inconsistent with the Judge’s ultimate adverse
decision.  Adverse decision affirmed.
CASENO: 05-02422.a1
DATE: 04/19/2007
DATE: April 19, 2007
In Re:
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SSN: -------
Applicant for Security Clearance
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ISCR Case No. 05-02422
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Department Counsel
FOR APPLICANT
Pro Se
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On October 21, 2005, DOHA issued a statement of reasons advising Applicant of the
basis for that decision–security concerns raised under Guideline E (Personal Conduct) of Department
of Defense Directive 5220.6 (Jan.2, 1992, as amended)(Directive).  Applicant requested a hearing.
On August 9, 2006, after the hearing, Administrative Judge Michael H. Leonard denied Applicant’s
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request for a security clearance.  Applicant timely appealed pursuant to Directive ¶¶ E3.1.28 and
E3.1.30.
Applicant raised the following issue on appeal: whether the Judge erred in finding that
Applicant was fired by a previous employer for violating company policy by conducting an affair
with, and showing favoritism toward, a subordinate employee.  Applicant’s brief also contains
matters which we construe as alleging that the Judge’s unfavorable clearance decision was arbitrary,
capricious, and contrary to law.  In support of his appeal, Applicant submits an additional piece of
evidence not offered at the hearing, in the form of an affidavit.  We affirm the decision of the Judge.
Whether the Record Supports the Judge’s Factual Findings
A.  Facts
The Judge made the following findings that are pertinent to this appeal: Applicant is a 47 year
old senior network engineer employed by a Defense Department contractor.  In April 1997 Applicant
began working for a previous employer, becoming a senior network engineer.
Applicant’s relationship with a female subordinate came to the attention of his previous
employer’s management.  The Vice President of the company presented credible evidence at the
hearing that Applicant showed the subordinate disparately favorable treatment; that he conducted
an extramarital affair with her; and that he misused company resources by submitting petty cash
receipts and travel receipts for expenses incurred in carrying on the affair.  Because of this activity,
Applicant’s previous employer fired him.
B.  Discussion
The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they
are supported by substantial evidence–such relevant evidence as a reasonable mind might accept as
adequate to support such a conclusion in light of all the contrary evidence in the record.”  Directive
¶  E3.1.32.1.  “This is something less than the weight of the evidence, and the possibility of drawing
two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings
from being supported by substantial evidence.”  Consolo v. Federal Maritime Comm’n, 383 U.S.
607, 620-21 (1966).  In evaluating the Judge’s findings, we are required to give deference to the
Judge’s credibility determinations.  Directive  ¶  E3.1.32.1.  
We have examined the challenged findings in light of the record as a whole and conclude that
they are supported by substantial evidence.  Therefore, we conclude that there is no error with respect
to the Judge’s material findings of security concern.
Whether the Record Supports the Judge’s Ultimate Conclusions
   A Judge is required to “examine the relevant data and articulate a satisfactory explanation
for” the decision, “including a ‘rational connection between the facts found and the choices 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
general standard is that a clearance may be granted only when ‘clearly consistent with the interests
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of national security.’”  Department of the Navy v. Egan, 484 U.S. 581, 528 (1988). The Appeal
Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary,
capricious, or contrary to law.  Directive  ¶  E3.1.32.3.  We review matters of law de novo.
We have examined the Judge’s findings of fact and conclusions in light of the security
concerns addressed under Guideline E–that conduct reflecting “unreliability” or an “unwillingness
to comply with rules and regulations” indicates that a person may not properly safeguard classified
information.  See Directive  ¶  E2.A5.1.1.  Applicant contends that the Judge’s favorable findings
on other allegations contained in the SOR are inconsistent with those at issue on appeal.  However,
we have examined these findings and conclude that they are logically separable from those which
underlie the Judge’s ultimate decision.  We conclude that there is a rational connection between the
Judge’s adverse findings and his decision to deny Applicant a clearance.  Therefore, we hold that the
Judge’s decision is not arbitrary, capricious, nor contrary to law.  We cannot consider the new
evidence which Applicant has submitted in support of his appeal.  Directive  ¶  E3.1.29.
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Order
The Judge’s decision denying Applicant a clearance is AFFIRMED.
Signed: Jeffrey D. Billett               
Jeffrey D. Billett
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