KEYWORD: Guideline E; Guideline H; Guideline J; Guideline M
DIGEST: Once the government presents evidence raising security concerns, the burden shifts to
the applicant to establish mitigation.  Adverse decision affirmed.
CASENO: 05-13515.a1
DATE: 07/19/2007
DATE: July 19, 2007
In Re:
--------
SSN: ------
Applicant for Security Clearance
)
)
)
)
)
)
)
)
ISCR Case No. 05-13515
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 March 29, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of
the basis for that decision—security concerns raised under Guideline E (Personal Conduct),
Guideline H (Drug Involvement), Guideline J (Criminal Conduct) and Guideline M (Misuse of
Information Technology Systems) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a hearing.  On January 25, 2007, after the hearing,
The Judge found in favor of Applicant under Guidelines H and J.  The Guideline M allegations and SOR ¶ 1.d1
were withdrawn.  Those favorable dispositions are not at issue on appeal.
The satellite television programs were accessed between 2002 and 2003, and were valued at approximately2
$14,000.  The 200 computer programs were downloaded between 1999 and 2003, and were valued at approximately
$10,000.
2
Administrative Judge Kathryn Moen Braeman denied Applicant’s request for a security clearance.1
Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raised the following issue on appeal: whether the Judge erred by concluding that
the security concerns raised under Guideline E had not been mitigated.
Applicant contends that the Judge erred in concluding that the security concerns raised under
Guideline E had not been mitigated.  With respect to the falsification of his security clearance
application, Applicant argues that the Judge should have found the disqualifying conduct mitigated,
as a matter of law, under the relevant Mitigating Conditions, because the conduct was an isolated
incident; not likely to recur; and he had subsequently provided the correct information voluntarily.
With respect to his multiple instances of accessing premium, pay-per-view, pornographic and other
satellite television programs (for himself and others) without paying the required fees, and his
downloading of multiple computer programs without paying the required costs,  Applicant argues2
the Judge should have found the disqualifying conduct mitigated, as a matter of law, under the whole
person factors, based upon the totality of the evidence.  The Board does not find these arguments
persuasive.
“[T]here is a strong presumption against granting a security clearance.” Dorfmont v. Brown,
913 F. 2d 1399, 1401 (9  Cir. 1990), cert. denied 499 U.S. 905 (1991).  Once the governmentth
presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.
Directive ¶ E3.1.15.  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, and considered the possible application of
relevant mitigating conditions and whole person factors.  The Judge found in favor of Applicant with
respect to some of the SOR allegations.  However, the Judge reasonably explained why the evidence
which the Applicant had presented in mitigation was insufficient to overcome all of 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. June 29, 2005).
Given the record that was before her, the Judge’s ultimate unfavorable clearance decision under
3
Guideline E is sustainable.
Order
The decision of the Judge denying Applicant a security 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