KEYWORD: Guideline H; Guideline J; Guideline E 
DIGEST: Applicant’s testimony at the hearing was relevant evidence but it was not binding on
the Judge.  Adverse decision affirmed.
CASENO: 05-07182.a1
DATE: 05/17/2007
DATE: May 17, 2007
In Re:
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SSN:-------
Applicant for Security Clearance
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ISCR Case No. 05-07182
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
William F. Savarino, Esq.
 The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On January 27, 2006, DOHA issued a statement of reasons advising Applicant of the
basis for that decision—security concerns raised under Guideline H (Drug Involvement), Guideline
J (Criminal Conduct), and Guideline E (Personal Conduct) of Department of Defense Directive
5220.6 (Jan. 2, 1992), as amended (Directive).  Applicant requested a hearing.  On September 29,
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2006, after the hearing, Administrative Judge Marc E. Curry denied Applicant’s request for a
security clearance.  Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
On appeal, Applicant raises the following issue: whether  the Administrative Judge’s decision
is arbitrary, capricious, or contrary to law.  Specifically, Applicant argues that the Judge should have
accepted Applicant’s testimony of her innocence as to drug charges in 2004, despite her guilty plea
to those charges at the time, and her testimony that she did not intentionally falsify her security
clearance application because of the state court expungement of her drug offenses.  She contends that
the Judge should have mitigated  her drug arrests in 1995 and 1993 due to the passage of time and
the fact that the charges in 1995 were dismissed.  Applicant also argues for mitigation due to
successful completion of a drug rehabilitation program.  The Board affirms the Judge’s decision.
Applicant’s testimony at the hearing about the events at issue was relevant evidence, but it
was not binding on the Administrative Judge.  As the trier of fact, the Judge has to consider an
applicant’s testimony in light of the record evidence as a whole.  See, e.g., ISCR Case No. 02-22404
at 4 (App. Bd. May 5, 2005).  Here, the Judge’s material findings were reasonably supported by the
record evidence, and the Judge’s conclusions follow rationally from the Judge’s findings. 
The application of disqualifying and mitigating conditions does not turn simply on a finding
that one or more of them applies to the particular facts of a case.  Rather, their application requires
the exercise of sound discretion in light of the record evidence as a whole.  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.  See, e.g., ISCR Case No. 05-02471 at 2
(App. Bd. Apr. 11, 2007).
In this case, the Judge reasonably weighed the mitigating evidence against the seriousness
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 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 05-02619 at 2 (App. Bd. Mar. 21, 2007).  Given
the record that was before him, the Judge’s ultimate unfavorable security clearance decision under
Guidelines H, J, and E is sustainable.
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Order
The Judge’s decision denying Applicant a clearance is AFFIRMED.
Signed: Michael D. Hipple    
Michael D. Hipple
Administrative Judge
Member, Appeal Board
Signed: Jean E. Smallin           
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: William S. Fields         
William S. Fields
Administrative Judge
Member, Appeal Board