KEYWORD: Guideline E
DIGEST: Although the Judge’s credibility determinations are flawed in part, her material
findings as to Applicant’s conduct of security concern are ultimately sustainable.  To the extent
that the Judge’s statement suggests that Applicant’s are categorically less worthy of belief than
government witnesses (even before considering other factors and evidence) it is error.  There is
no rule in DOHA which would render Applicants as a class less worthy of belief simply because
of their status.  Adverse decision affirmed.
CASENO: 03-08231.a1
DATE: 10/09/2007
DATE: October 9, 2007
In Re:
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Applicant for Security Clearance
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ISCR Case No. 03-08231
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
John Bayard Glendon, Esq., Department Counsel
FOR APPLICANT
Lisa A. Prager, Esq., Joshua A. Holzer, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On December 15, 2005, DOHA issued a statement of reasons advising Applicant of the
basis for that decision—security concerns raised under Guideline E (Personal Conduct) of
The Judge found in favor of the Applicant with respect to SOR paragraph 1.a.  That favorable finding is not1
at issue on appeal.
2
Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant
requested a hearing.  On March 29, 2007, after the hearing, Administrative Judge Joan Caton
Anthony denied Applicant’s request for a security clearance.   Applicant timely appealed pursuant1
to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raised the following issues on appeal: whether the Judge erred in concluding
Applicant’s falsification of his security clearance application was deliberate; whether the Judge’s
adverse security clearance decision is arbitrary, capricious or contrary to law.
Applicant contends that he did not deliberately falsify his security clearance application by
failing to disclose a public record civil court action for fraud against the United States Government
in which he was named as a party.  In support of this contention, he argues that the omission of the
information in question was due to a misunderstanding on his part, and he subsequently provided
the correct information.  He also argues that his testimony as to the events at issue was credible and
the version offered by the government’s agents was flawed.  Applicant’s arguments in this regard
do not demonstrate harmful error on the part of the Judge.
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 choice 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)).  Our scope
of review under this standard is narrow and we may not substitute our judgment for that of the Judge.
Close cases should be resolved in favor of national security, rather than in favor of the Applicant.
See, e.g. DISCR Case No. 93-1390 at 8 (App. Bd. Jan. 27, 1995).
 
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 the contrary evidence in the record.  Directive ¶ E3.1.32.1.
“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).  A Judge’s credibility determinations are entitled to deference on appeal.  See, e.g., ISCR
Case No. 03-05072 at 5 (App. Bd. July 14, 2005).  Although such determinations are not immune
from review, the party challenging them has a heavy burden. See ISCR Case No. 04-00225  at 2
(App. Bd. Nov. 9, 2006).   
Although the Judge’s credibility determinations are flawed in part, her material findings as
to Applicant’s conduct of security concern are ultimately sustainable.  The judge made two
problematic statements regarding her credibility determinations.  First, as a threshold factor in her
credibility determination of Applicant, the Judge states in her decision, “Applicant was seeking to
retain a security clearance he had held for 30 years, and this motive weighs against him in my
credibility determination.  The DSS special agent was a government employee doing his job, and in
that capacity he knew there is a significant penalty for providing false information.”  The Judge was
The Judge’s use of the term “misconduct” in the footnote reference to the second agent’s testimony is puzzling.2
There is no evidence in the record that suggests the inaccuracies in the agent’s testimony were the result of any sort of
misconduct.  Of course, even innocent errors may have a negative impact upon credibility. 
3
entitled to believe either witness (Applicant or the DSS agent) in whole or in part.  She was also
entitled to evaluate the credibility of each witness with reference to all evidence relevant to
credibility, including possible motives for not being honest.  However, the Judge’s threshold
statement highlighting Applicant’s diminished credibility as a result of his seeking to retain his
security clearance sweeps too broadly.  All DOHA Applicants are seeking to obtain or retain security
clearances.  To the extent that the Judge’s statement suggests that Applicants are categorically less
worthy of belief than government witnesses (even before considering other factors and evidence in
the case that relate to credibility), it is error.  There is no rule in DOHA proceedings which supports
a general proposition the effect of which is to render Applicants, as a class, less worthy of belief
simply because of their status as Applicants.
Second, part of the Judge’s adverse credibility determination of Applicant is based on her
conclusion that a second DSS investigative agent offered credible testimony that was at odds with
Applicant’s testimony.  The Judge also concluded that there were errors and inaccuracies in the
testimony of this second agent (who became involved in the case after the DSS agent referenced in
the preceding paragraph).  The Judge ultimately concluded that the errors and inaccuracies did not
materially affect the second agent’s credibility, and she went on in a footnote to state, “[a]s a general
proposition, misconduct by a DSS investigator that does not detract from his or her credibility does
not justify a clearance for the applicant being interviewed.”  Here, the Judge’s comments about the
lack of effect upon credibility of inaccuracies in the second agent’s testimony are erroneous.  Clearly,
the inaccuracies in the testimony of the second agent do detract from the Judge’s favorable
credibility determination of that witness.   2
Notwithstanding these errors, The Administrative Judge adverse credibility determination
of Applicant, which is entitled to deference on appeal because of the Judge’s unique opportunity to
observe Applicant’s demeanor, is ultimately sustainable in that it relies in large part on factual
findings and conclusions that are supported by substantial record evidence.  These factors include:
(I) Applicant’s failure to provide pertinent information regarding a fraud lawsuit, to which he was
once a party, on his security clearance application; (ii)  the prior allegations of fraud brought by the
U.S. government (in a civil lawsuit) that involved Applicant and his company, the disposition of
which left the issue of Applicant’s culpability unresolved: (iii) the plausibility of a motive to conceal
the fact of the lawsuit on Applicant’s part (arising from the fact that the issue of his culpability
remained unresolved, notwithstanding the fact that he, personally, had been dropped as a party to the
litigation); (iv) the strength of the first DSS agent’s testimony, parts of which were corroborated by
Applicant’s own testimony; (v) Applicant’s extensive educational background; and (vi) Applicant’s
considerable familiarity with the security clearance application process.  Ultimately, there is an
adequate basis for the Judge’s adverse credibility determination of Applicant, and the errors
described in the preceding paragraphs are harmless. 
The Judge had the opportunity to consider Applicant’s explanation for why he failed to
disclose the information in question.  The Judge was not bound, as a matter of law, to accept or reject
Applicant’s explanation.  The Judge considered Applicant’s explanation in light of the record
evidence as a whole, and concluded there was a sufficient basis to find that Applicant’s omission was
4
deliberate and intentional.  On this record, the Judge’s finding of deliberate falsification is
sustainable.  See Directive ¶ E3.1.32.1; ISCR Case No. 04-03849 at 2-3 (App. Bd. Jan. 26, 2006).
The security concern raised by Applicant’s falsification was not necessarily overcome by Applicant’s
subsequent disclosures to the government.  See ISCR Case No. 01-19513 at 5 (App. Bd. Jan. 22,
2004).
In the alternative, Applicant contends that the Judge should have found that the security
concerns raised by Applicant’s falsification had been mitigated, as a matter of law, under the
Guideline E mitigating conditions and the Directive’s whole person factors.   In support of this
contention, Applicant argues that his falsification was an isolated incident; it was not recent; it was
not likely to recur; it would not render him vulnerable to pressure or coercion; he had subsequently
provided the correct information; the information regarding the civil lawsuit against him for fraud
against the government was not pertinent to a determination of judgment, trustworthiness, or
reliability; and its security significance is outweighed by his otherwise unblemished 30 year history.
Again, Applicant’s arguments do not demonstrate error on the part of the Judge.
“[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.  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
recency and seriousness of the disqualifying conduct, and considered the possible application of
relevant mitigating conditions and whole person factors.  The Judge found in favor of the Applicant
with respect to the other SOR allegation.  However, the Judge reasonably explained why the
evidence which the Applicant had presented in mitigation was insufficient to overcome all of the
government’s security concerns.  The Board does not review a case de novo.  Applicant offers a
rational alternative interpretation of the record evidence.  But that alternative interpretation of the
record evidence is insufficient to render the Judge’s interpretation arbitrary, capricious or contrary
to law.  See, e.g., ISCR Case No. 03-19101 at 2 (App. Bd. Oct. 13, 2006).  The Judge has articulated
a rational explanation for her unfavorable determination under the disqualifying and mitigating
factors and the whole-person concept, and there is sufficient record evidence to support that
determination—given the standard that required the Judge to err on the side of national security. See,
e.g., DISCR Case No. 93-1390 at 8 (App. Bd. Jan. 27, 1995).  Based on the record that was before
her, the Judge’s ultimate unfavorable clearance decision under Guideline E sustainable.
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Order
The decision of the Administrative Judge denying Applicant a clearance is AFFIRMED.
Signed: Michael Y. Ra’anan   
Michael Y. Ra’anan
Administrative Judge
Chairman, Appeal Board
Signed: Jeffrey D. Billett       
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Separate Opinion of Member William S. Fields
After reviewing the record, I conclude that the Judge’s material findings as to Applicant’s
conduct of security concern are based upon a permissible interpretation of the record evidence.  They
are supported by substantial evidence and are not arbitrary, capricious or contrary to law.  See, e.g.,
ISCR Case No. 05-11175 at 2 (App. Bd. Jun. 15, 2007); ISCR Case No. 04-08806 at 2 (App. Bd.
May 8, 2007).  Accordingly, the Judge’s adverse clearance decision can be affirmed.
Signed: William S. Fields      
William S. Fields
Administrative Judge
Member, Appeal Board