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Exemption 6 applies
KEYWORD: Guideline F
DIGEST: The legality of an applicant’s conduct and circumstances does not preclude a Judge
from considering whether they raise trustworthiness concern.  The Directive presumes there is a
nexus or rational connection between proven conduct under any guideline and an applicant’s
trustworthiness eligibility. Adverse decision affirmed.
CASENO: 06-16376.a1
DATE: 08/28/2007
DATE: August 28, 2007
In Re:
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Applicant for Public Trust Position
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ADP Case No. 06-16376
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) proposed to deny or revoke access to
In her brief, Applicant also makes statements as to her ongoing efforts to resolve her financial problems.  The1
Board may not consider new evidence on appeal.  See Directive ¶ E3.1.29.  Accordingly, we may not consider
Applicant’s additional explanations, and they do not demonstrate error on the part of the Judge.
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automated information systems in ADP-I/II/III sensitivity positions for Applicant.  On November
3, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that
decision—trustworthiness concerns raised under Guideline F (Financial Considerations) of
Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant
requested a hearing.  On February 28, 2007, after the hearing,  Administrative Judge Marc E. Curry
denied Applicant’s request for a trustworthiness designation.  Applicant timely appealed pursuant
to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raised the following issue on appeal: whether the Judge’s adverse trustworthiness
determination is arbitrary, capricious, or contrary to law.
Applicant argues that the Judge erred in concluding that the Applicant’s financial problems
raised trustworthiness concerns raised under Guidelines F.  She also argues that the Judge gave
insufficient weight to the favorable evidence in the record, particularly her outstanding job
performance and the fact that she has no criminal record.   Applicant’s arguments do not demonstrate1
that the Judge erred.
The legality of an applicant’s conduct and circumstance does not preclude a Judge from
considering whether they raise trustworthiness concerns.  Cf., ISCR Case No. 04-08623 at 5 (App.
Bd. July 29, 2005). The Directive presumes there is a nexus or rational connection between proven
conduct under any of its Guidelines and an applicant’s trustworthiness eligibility.  Cf., ISCR Case
No. 02-28935 at 3-4 (App. Bd. June 28, 2005).  The federal government need not wait until an
applicant actually mishandles or fails to properly handle sensitive information before it can deny or
revoke access to such information.  See, e.g., ADP Case No. 06-09293 at 2 (App. Bd. June 6, 2007).
Trustworthiness determinations are not limited to consideration of an applicant's job performance
or conduct during duty hours, and off-duty conduct can be relevant in assessing an applicant's
trustworthiness eligibility. ADP Case No. 06-07581 at 2 (App. Bd. May 17, 2007).  An applicant
with good or exemplary job performance may engage in conduct that has negative trustworthiness
implications.  See, e.g., ADP Case No. 06-09293 at 2 (App. Bd. June 6, 2007).  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 trustworthiness eligibility.  A whole-person analysis is not confined to the workplace. Id.
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
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that is arbitrary, capricious, or contrary to law.
In this case, the Judge weighed the mitigating evidence offered by Applicant against the
length and seriousness of the disqualifying conduct, and considered the possible application of
relevant mitigating conditions.  He reasonably explained why the evidence which the Applicant had
presented in mitigation was insufficient to overcome the government’s trustworthiness 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.,
ADP Case No. 06-07581 at 2 (App. Bd. May 17, 2007).  Given the record that was before him, the
Judge’s ultimate unfavorable trustworthiness determination under Guideline F is sustainable.
Order
The determination of the Judge denying Applicant access to automated information systems
in ADP I/II/II sensitivity positions is AFFIRMED.
Signed: Michael Y. Ra’anan         
Michael Y. Ra’anan
Administrative Judge
Chairman, 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