FOR OFFICIAL USE ONLY
When unredacted this document contains information
EXEMPT FROM MANDATORY DISCLOSURE under the FOIA
Exemption 6 applies
KEYWORD: Guideline G; Guideline E; Guideline J
DIGEST: The Judge is not required to cite or discuss every piece of evidence. The application of
the disqualifying and mitigating conditions requires the exercise of sound discretion in light of
the record as a whole.  Adverse decision affirmed.
CASENO: 06-10950.a1
DATE: 07/25/2007
DATE: July 25, 2007
In Re:
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Applicant for Security Clearance
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ISCR Case No. 06-10950
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 June 23, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the
The Judge found in favor of Applicant under Guideline G.  That favorable finding is not at issue on appeal.1
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basis for that decision—security concerns raised under Guideline G (Alcohol Consumption),
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 January
24, 2007, after the hearing, Administrative Judge Joseph Testan denied Applicant’s request for a
security clearance.  Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.1
Applicant raised the following issue on appeal: whether the Judge erred by concluding that
the security concerns raised under Guidelines E and J had not been mitigated.
Applicant argues that the Judge erred in concluding that the security concerns raised under
Guidelines E and J had not been mitigated, in that he gave insufficient weight to the fact that
Applicant had served honorably and faithfully in the Navy for 26 years; he had served honorably as
a police officer for 21 years; and he had held a security clearance of 23 years.  Applicant’s argument
does not demonstrate that the Judge erred.
There is a rebuttable presumption that the Judge considered all the record evidence unless
he specifically states otherwise. See, e.g., DOHA Case No. 96-0228 at 3 (App. Bd. Apr. 3, 1997).
The Judge is not required to cite or discuss every piece of record evidence.  See, e.g., DISCR Case
No. 90-1596 at 5 (App. Bd. Sept. 18, 1992).  The federal government need not wait until an applicant
actually mishandles or fails to properly handle classified information before it can deny or revoke
access to such information.  See Adams v. Laird, 420 F. 2d 230, 238-239 (D.C. Cir. 1969), cert.
denied, 397 U.S. 1039 (1970).  An applicant with good or exemplary job performance may engage
in conduct that has negative security implications.  See, e.g., ISCR Case No. 99-0123 at 3 (App. Bd.
Jan. 11, 2000).  The Directive's Guidelines set forth a variety of examples of off-duty conduct and
circumstances which are of trustworthiness concern to the government and mandate a whole person
analysis to determine an applicant's security clearance eligibility.  A whole-person analysis is not
confined to the workplace. See ISCR Case No. 03-11231 at 3 (June 4, 2004).
“[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.  Rather, their application requires the exercise of sound discretion in light of the record
evidence as a whole.  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
trustworthiness determination.  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.
The Applicant has not met his burden of demonstrating that the Judge erred in concluding
that the personal conduct and criminal conduct allegations had not been mitigated.  Although
Applicant strongly disagrees with the Judge’s conclusions, he has not established that those
conclusions are arbitrary, capricious, or contrary to law.  See Directive ¶ E3.1.32.3.
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In this case, the Judge weighed the mitigating evidence offered by Applicant against the
seriousness of the disqualifying conduct.  He found in favor of Applicant with respect to some of the
allegations.  However, he reasonably explained why the evidence which the Applicant had presented
in mitigation was insufficient to overcome all 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 him, the Judge’s
ultimate unfavorable security clearance decision under Guidelines E and J is sustainable.
Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Michael Y. Ra’anan          
Michael Y. Ra’anan
Administrative Judge
Chairman, 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