FOR OFFICIAL USE ONLY
When unredacted this document contains information
EXEMPT FROM MANDATORY DISCLOSURE under the FOIA
Exemption 6 applies
KEYWORD: Guideline E; Guideline D; Guideline J
DIGEST: The fact that criminal charges were dropped or dismissed does not preclude a judge
from finding that an applicant engaged in the conduct underlying the criminal charges. The Board
is required to give deference to a judge’s credibility determinations.
CASENO: 05-14114.a1
DATE: 08/09/2007
DATE: August 9, 2007
In Re:
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Applicant for Security Clearance
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ISCR Case No. 05-14114
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Chuck R. Pardue, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On June 30, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the
The Administrative Judge’s formal findings in favor of Applicant involving other alleged conduct under1
SOR paragraphs 1.c, 1.d, 3.b, and 3.c are not in issue in this appeal. 
Applicant did not object to the admission of this document into evidence.  Rather, he only argued that it2
should be given little weight.  Tr. at 16. 
Tr. at 31-33. 3
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basis for that decision—security concerns raised under Guideline E (Personal Conduct), Guideline
D (Sexual Behavior), and Guideline J (Criminal Conduct) of Department of Defense Directive
5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.  On January 30, 2007,
after the hearing, Administrative Judge LeRoy F. Foreman 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 issues on appeal: (a) whether the Administrative Judge erred
in finding that Applicant had repeatedly exposed himself and committed certain indecent acts in front
of children in November 2000; (b) whether the Administrative Judge’s unfavorable security
clearance determination is arbitrary, capricious, or contrary to law when the only evidence against
Applicant is untried allegations that he had engaged in the sexual misconduct described above,
coupled with Applicant’s 2001 decision to accept discharge from the Air Force under other than
honorable conditions rather than face court-martial on those allegations; and (c) whether the
Administrative Judge’s unfavorable security clearance determination is arbitrary, capricious or
contrary to law, considering Applicant’s exemplary work history.
The Board’s review of a Judge’s findings 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 contrary evidence in the record.  Directive ¶ E3.1.31.1.
“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 finding from
being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620
(1966).  In evaluating the Judge’s findings, we are required to give deference to the Judge’s
credibility determinations.  Directive ¶ E3.1.32.1.  The Board does not review a case de novo. 
The record evidence available to the Judge included the Air Force Office of Special
Investigations’ police report implicating Applicant (Government Exhibit 3)  and Applicant’s own2
testimony that he accepted the Air Force’s offer of discharge knowing the nature of the charges
against him, his right to contest his guilt at trial, and knowing what discharge under other than
honorable conditions meant.   The Judge also had the opportunity to observe Applicant’s demeanor3
during the hearing.  Considering the record as a whole, the Judge’s findings that Applicant had
engaged in the sexual misconduct and that his claims of innocence were not credible, are sustainable.
A Judge is required to “examine the relevant data and articulate a satisfactory explanation
for” the decision “including a ‘rational connection between the facts found and the choices made.’”
Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43
(1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962).  “The
general standard is that a clearance may be granted only when ‘clearly consistent with the interests
of national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).  The Appeal
Tr. at 81.4
Directive ¶ E2.2.5
Directive  ¶ ¶ E2.2.2 and E2.2.3. 6
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Board may reverse a Judge’s decision to grant, deny or revoke a security clearance if it is arbitrary,
capricious, or contrary to law.  Directive ¶¶ E3.1.32.3 and E3.1.33.3.  
There is a presumption against granting a clearance.  Dorfmont v. Brown, 913 F. 2d 1399,
1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991).  Once the government presents evidence
raising security concerns, the burden shifts to the applicant to establish any appropriate mitigating
conditions.  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 ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20, 2006).
On appeal, Applicant contends that the absence of any other prior or repeat incidents of
sexual misconduct supports the finding that the sexual misconduct alleged in the SOR never
happened.  At his hearing, Applicant had argued that the Air Force’s offer not to take his case to trial
if he agreed to accept a discharge in lieu of court-martial, was an admission by the Air Force that it
could not make its case against Applicant.   Applicant also draws the Board’s attention to his4
exemplary work record and the six years that have passed since the incident. 
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 fact
that criminal charges were dropped or dismissed does not preclude a Judge from finding that an
applicant engaged in the conduct underlying the criminal charges.  See ISCR Case No. 03-11906 at
3 (App. Bd. Jul. 19, 2005); ISCR Case No. 02-10168 at 3 (App. Bd. Aug. 1, 2003).
Security clearance decisions are not limited to considering an applicant's job performance or
conduct during duty hours, but rather can be based on consideration of an applicant's conduct
separate from the work place. An applicant with good or exemplary job performance may engage
in conduct that has negative security implications.  See ISCR Case No. 01-25466 at 3-4 (App. Bd.
Jul. 22, 2004).  The federal government must be able to repose a high degree of trust and confidence
in persons granted access to classified information.  Snepp v. United States, 444 U.S. 507, 511 n. 6
(1980).  In assessing an applicant's security eligibility, the federal government can take into account
whether an applicant's conduct or circumstances raise questions about the applicant's judgment,
reliability, or trustworthiness.  See ISCR Case No. 01-25466 at 4 (App. Bd. Jul. 22, 2004).
Considering the security concern surrounding Applicant’s sexual misconduct, the Directive’s whole-
person factors,  and the “clearly consistent with the interests of national security” standard,  it was5 6
not arbitrary, capricious or contrary to law for the Judge to deny Applicant a security clearance.  
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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: William S. Fields             
William S. Fields
Administrative Judge
Member, Appeal Board
Signed: James E. Moody              
James E. Moody
Administrative Judge
Member, Appeal Board