KEYWORD: Guideline E; Guideline J
DIGEST: The Administrative Judge’s reading of Applicant’s admissions in his response to the
SOR is untenable.  Applicant’s admission of “A - I” “involving criminal history”is broader than
just subparagraph 1.a. and includes subparagraphs 1.b through 1.i.  Thus, the Judge’s conclusion
that the government had failed to meet its burden of production regarding subparagraphs 1.b. and
1.h. (Applicant’s four year confinement and the application of 10 USC 986) is erroneous. 
Favorable decision reversed.
CASENO: 05-02039.a1
DATE: 06/06/2007
DATE: June 6, 2007
In Re:
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SSN:--------
Applicant for Security Clearance
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ISCR Case No. 05-02039
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Rita C. O’Brien, Esq., Department Counsel
FOR APPLICANT
Pro Se
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
10 U.S.C. 986 (c), prevents the Department of Defense from granting or renewing a clearance to anyone who1
“. . .has been convicted in any court of the United States of a crime, was sentenced to imprisonment for a term exceeding
one year, and was incarcerated as a result of that sentence for not less than one year.”  
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clearance.  On October 27, 2005, DOHA issued a statement of reasons 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 decision on the written record.  On October 6, 2006, after
considering the record, Administrative Judge Kathryn Moen Braeman granted Applicant’s request
for a security clearance.  Department Counsel filed a timely appeal pursuant to Directive ¶¶  E3.1.28
and E3.1.30.
Department Counsel raises the following issues on appeal: whether the Judge erred in
concluding that the provisions of 10 U.S.C. 968 do not apply to Applicant’s case; and whether the
Judge’s decision that Applicant had mitigated security concerns raised under Guideline E was
arbitrary, capricious, and contrary to law.  We reverse the decision of the Judge.
Whether the Record Supports the Judge’s Factual Findings
The Judge found that Applicant was sentenced to four years incarceration as a result of a
1974 charge of Armed Robbery.  She then found that there is no documentation as to the time served
by Applicant under this sentence.  The Judge also found that Applicant had other criminal arrests (to
include felonies) in 1970, 1980 and 1990.  
The SOR alleges in subparagraph 1(b) that Applicant was convicted of armed robbery, a
felony, and sentenced to four years confinement.  The SOR states that Applicant was “received on
February 7, 1974, at the Mississippi Department of Corrections, Parchman, Mississippi, and
discharged on July 11, 1975.”  The SOR further alleges in subparagraph 1(h) that “[d]ue to the facts
alleged in subparagraph 1(b) above, 10 U.S.C. 986  disqualifies you from having a security clearance1
granted or renewed by the Department of Defense.”  
In his response to the SOR, Applicant states the following regarding paragraph 1, the
Guideline J criminal conduct security concerns: “A - I involving criminal history – I ADMIT.”   The
Judge found that Applicant’s response meant that he was admitting only the subparagraph 1.a of the
SOR.  Because there is no further mention of time served by Applicant, the Judge concluded that the
government had failed to meet its burden of production regarding the application of 10 U.S.C. 986.
See Directive ¶  E3.1.14.  
The Appeal Board’s review of the Judge’s findings of fact 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. 
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On appeal, Department Counsel asserts that Applicant admitted 17 months of actual
incarceration in his answer to the SOR and that this admission was sufficient to trigger the
application of 10 U.S.C. 986.  The Board Agrees, reading Applicant’s response as admitting all
allegations in paragraph 1 of the SOR regarding his criminal conduct, to include the facts necessary
to establish the Smith Act prohibition.  The Judge’s interpretation of Applicant’s answer as including
only a response to subparagraph 1.a under Guideline J, to the exclusion of subparagraphs 1.b through
1.i, is untenable given the Applicant’s reference to “A - I” and his use of the words “involving
criminal history” before stating “I admit.”  Applicant was clearly referring to more than subparagraph
1.a when making his admission, which relieved Department Counsel of her evidentiary burden on
the issue of the length of Applicant’s incarceration after his 1973 arrest and conviction for armed
robbery.  Therefore, we conclude that the Judge erred in her Guideline J analysis.  
Whether the Record Supports the Administrative Judge’s Conclusions
The Judge’s erroneous finding regarding Applicant’s answer to the SOR and the applicability
of 10 U.S.C. 986 is dispositive of this case.
Order
The Judge’s favorable clearance decision is REVERSED.  
Signed: Michael Y. Ra’anan        
Michael Y. Ra’anan
Administrative Judge
Chairman, Appeal Board
Signed: Jeffrey D. Billett            
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: James E. Moody                  
James E. Moody
Administrative Judge
Member, Appeal Board