KEYWORD: Guideline E; Guideline J
DIGEST: The application of disqualifying and mitigating conditions and whole person factors
does not turn simply of a finding that one or more of them apply to the perticular facts of a case. 
Adverse decision affirmed.
CASENO: 03-25310.a1
DATE: 06/18/2007
DATE: June 18, 2007
In Re:
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SSN: ------
Applicant for Security Clearance
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ISCR Case No. 03-25310
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 May 17, 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
amended) (Directive).  Applicant requested a hearing.  On November 30, 2006, after the hearing,
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Administrative Judge John Grattan Metz, Jr. 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 his findings;
whether the Judge erred in concluding Applicant’s falsification of his security clearance application
and a signed, sworn statement to a government investigator 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 in finding he had a clearance while in the military,
when in fact he had only had a National Background Check.  Applicant also asserts that the Judge
erred with respect to the “small details” of incidents alleged in the SOR or otherwise mis-
characterized the evidence.  However, assuming solely for the purposes of this appeal that each of
the challenged findings 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 most
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 information about his prior criminal conduct in response to three
different questions.  Likewise, he also contends that he did not falsify a signed, sworn statement to
a government investigator by failing to disclose that same conduct.  In support of this contention, he
argues that the omission of the information was due to a faulty memory, a misunderstanding of the
questions, and his unfamiliarity with the security clearance process.  He also argues that he
subsequently provided the correct information.  The Board does not find Applicant’s contentions
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 omissions
were 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 conduct had not been mitigated.  In support of that contention, Applicant argues that
the prior criminal incidents which he failed to disclose are not recent and not likely to recur, and that
their adverse implications are outweighed by the favorable evidence presented by the Applicant.  As
a result, Applicant requests that the Board “take another look at [his] case.”  The Board does not find
these arguments persuasive.
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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 weighed the mitigating evidence offered by Applicant against the
recency and seriousness of the disqualifying conduct.  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 him, 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: 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