FOR OFFICIAL USE ONLY
When unredacted this document contains information
EXEMPT FROM MANDATORY DISCLOSURE under the FOIA
Exemption 6 applies
KEYWORD: Guideline C; Guideline B
DIGEST: Favorable record evidence cited by Applicant is not sufficient to demonstrate that the
Judge adverse decision is erroneous.  Adverse decision affirmed.
CASENO: 04-12255.a1
DATE: 09/10/2007
DATE: September 10, 2007
In Re:
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Applicant for Public Trust Position
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ADP Case No. 04-12255
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
trustworthiness designation.  On October 5, 2006, DOHA issued a statement of reasons (SOR)
advising Applicant of the basis for that decision—trustworthiness concerns raised under Guideline
The Judge found in favor of Applicant with respect to SOR paragraph 2.c.  That favorable finding is not at issue1
on appeal.
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C (Foreign Preference) and Guideline B (Foreign Influence) of Department of Defense Directive
5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested that the case be decided upon
the written record.  On March 20, 2007, after considering the record, Administrative Judge Elizabeth
M. Matchinski 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 under Guidelines C and B is arbitrary, capricious or contrary to law.1
Applicant argues that the Judge erred in concluding that he had not mitigated the
trustworthiness concerns raised under Guidelines C and B.  In support of this argument, Applicant
summarizes the favorable evidence he presented below.  The Board does not find Applicant’s
argument persuasive.
The Applicant has not met his burden of demonstrating that the Judge erred in concluding
that the trustworthiness concerns raised by his possession of a Yemeni passport, and his family ties
and property interests in Yemen, 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.
The application of disqualifying and mitigating conditions 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.
In this case, the Judge weighed the mitigating evidence offered by Applicant against the
nature and seriousness of the disqualifying circumstances, and considered the possible application
of relevant mitigating conditions.  The Judge 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., ISCR Case No. 02-28041 at 4 (App. Bd. Jun. 29, 2005).  Given the record that was
before her, the Judge’s ultimate unfavorable trustworthiness determination under Guidelines C and
B is sustainable.
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Order
The decision of the Judge denying Applicant a trustworthiness designation 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