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Exemption 6 applies
KEYWORD: Guideline B
DIGEST: Once the government presents evidence raising security concerns the burden shifts to
the applicant to establish mitigation.  Adverse decision affirmed.
CASENO: 06-09542.a1
DATE: 09/04/2007
DATE: September 4, 2007
In Re:
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Applicant for Security Clearance
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ISCR Case No. 06-09542
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 August 31, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of
the basis for that decision—security concerns raised under Guideline C (Foreign Preference) and
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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
February 28, 2007, after considering the record, Administrative Judge Juan J. Rivera denied
Applicant’s request for a security clearance.  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 clearance
decision under Guidelines C and B is arbitrary, capricious or contrary to law.
Applicant argues that the Judge erred in concluding that he had not mitigated the security
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 security concerns raised by his possession and renewal of a Polish passport, and his family
ties and property interests in Poland, 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.
“[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.
See Directive ¶ E3.1.15.   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 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
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 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. Jun. 29, 2005).  Given the record that was
before him, the Judge’s ultimate unfavorable clearance decision under Guidelines C and B is
sustainable.
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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: Jean E. Smallin          
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: William S. Fields     
William S. Fields
Administrative Judge
Member, Appeal Board