KEYWORD: Guideline J
DIGEST: The Judge’s conclusions fail to explain why a a pattern of arrests that spans twenty
years and includes carrying a dangerous weapon, domestic disturbance, assault on a minor,
communicating threatening language possession of marijuana, hit and run and DUI is not recent
due merely to the elapse of three years since the last offense. Ant evaluation of rehabilitation
must take into account the seriousness of the criminal conduct.  Favorable decision reversed.
CASENO: 05-00448.a1
DATE: 10/01/2007
DATE: October 1, 2007
In Re:
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Applicant for Security Clearance
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ISCR Case No. 05-00448
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Eric Borgstrom, Esq., Department Counsel
FOR APPLICANT
Thomas Albin, Esq.
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 advising Applicant of the basis
for that decision–security concerns raised under Guideline J (Criminal Conduct) of Department of
2
Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.
On February 28, 2007, after the hearing, Administrative Judge Charles D. Ablard granted
Applicant’s request for a security clearance.  Department Counsel filed a timely appeal pursuant to
Directive ¶¶  E3.1.28 and E3.1.30.
Department Counsel raises the following issues on appeal: whether the Judge’s treatment of
the Criminal Conduct Mitigating Conditions is arbitrary and capricious; and whether the Judge’s
whole person analysis is arbitrary and capricious.  Finding error, we reverse.
The Judge made the following pertinent findings of fact: Applicant is an employee of a
defense contractor.  He has held a security clearance since 1982.  
In February 2004 Applicant was arrested for DUI.  He declined to submit to a breathalyser.
Following conviction, he was required to attend a 15-week alcohol education course.
In November 2000 Applicant was charged with leaving the scene of an accident, his car
having struck another car in a parking lot.  Ticketed for leaving the scene of an accident and for
failure to obey a police officer, he was convicted, pursuant to a plea agreement, of refusing an
officer’s request to show his license.  
In June 1999 Applicant was arrested for walking illegally across a bridge.  Upon searching
him, the police discovered a marijuana cigarette in Applicant’s pocket.  
In September 1991, Applicant was arrested and charged with assault and risk of injury to a
minor.  Applicant had forcibly removed a 13 year old boy from his yard.  Applicant was given 12
months probation and required to take an anger management course.
In July 1991, Applicant was charged with “breach of the peace and threatening.”  This
incident involved an altercation with his brother.
In 1986, Applicant was arrested and charged with a domestic disturbance, for which he was
required to attend 10 anger management classes.
In 1982, Applicant was arrested and charged with carrying a dangerous weapon (brass
knuckles), a felony.  He was also charged with breach of the peace.  The record does not show the
disposition of this case. 
The Appeal Board’s review of the Judge’s findings of facts 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 findings from being supported by substantial evidence.”  Consolo v. Federal Maritime
Comm’n, 383 U.S. 607, 620-21 (1966).  In evaluating the Judge’s findings, we are required to give
deference to the Judge’s credibility determinations.  Directive ¶ E3.1.32.1.  Department Counsel has
not expressly challenged the Judge’s findings.
Directive ¶  E2.A10.1.3.1.  “The criminal behavior was not recent.”1
Directive ¶ E2.A10.1.3.6.  “There is clear evidence of successful rehabilitation.”2
ISCR Case No. 99-0018 at 4 (App. Bd. Apr. 11, 2000).3
3
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
Board may reverse the 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.
“[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 any
appropriate mitigating conditions.  See 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).
In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board
will review the Judge's decision to determine whether:  it does not examine relevant evidence; it fails
to articulate a satisfactory explanation for its conclusions, including a rational connection between
the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of
judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision
that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere
difference of opinion. In deciding whether the Judge's rulings or conclusions are contrary to law, the
Board will consider whether they are contrary to provisions of Executive Order 10865, the Directive,
or other applicable federal law.  See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006).
In resolving the case for  Applicant, the Judge favorably applied Criminal Conduct Mitigating
Conditions (CCMC) 1  and 6.   Department Counsel argues that, concerning CCMC 1, the Judge1 2
evaluated Applicant’s criminal conduct in a piecemeal fashion, rather than considering it in its
totality.  Department Counsel argues that Applicant’s conduct, when viewed as a whole, is
inconsistent with the Judge’s conclusion that the conduct was not recent.  
Department Counsel’s argument has merit.  As stated above, a Judge’s application of
mitigating factors must be conducted in light of the record as a whole.  With regard to the recency,
“[t]he board has declined to furnish  ‘bright-line’ guidance.  The conclusion . . . that conduct of
security significance was not recent must be evaluated through careful consideration of the totality
of the specific record at hand.”   Similarly, CCMC 6 “requires more than just some evidence of3
ISCR Case No. 01-03695 at 9 (App. Bd. Oct. 16, 2002).4
See, e.g., ISCR Case No. 03-27170 at 4-5 (App. Bd. May 5, 2006). 5
Decision at 4. 6
Applicant testified that someone had given him the weapon a few months prior to the incident for which he was7
arrested.  “Q: And in this instance, you saw your friend was getting into a fight and so you handed him the brass
knuckles?  A: Right.”  Tr. at 53-54.
“Q: What were the circumstances surrounding this arrest?  A: I really can’t remember that exact, because we8
fought so much.  I don’t really remember the exact time that I got arrested for that one . . . Q: You remembered that you
were ordered to attend ten anger management classes?  A: Right . . . Q: Do you recall that it involved your first ex-wife
. . . A: Yes.  I know it was my first ex-wife, but I don’t know what the exact fight was about or what happened . . . we
lived in a trailer park, so screaming and yelling, you can hear it like it’s right in your own trailer . . . Q: Do you recall
if she was charged with anything at the same time? A . . . She wasn’t.”  Tr. at 40-41.
The incident arose out of an altercation between the victim and Applicant’s children.  “[Applicant] dragged9
[victim] by the throat across the road and released his grip on [victim’s] throat. [Victim] hit his head and shoulders on
a tree trunk . . . [Applicant] picked up [victim’s] bicycle and threw it across the road . . .”  Exhibit 9 describes the
victim’s throat has having black and blue bruises.  Government Exhibit 9 at 3.
“[Applicant’s brother stated] that [Applicant] had come over swearing loudly and very upset . . . that10
[Applicant] ran from the house and got a crowbar.  That [Applicant] hit the outside handrail with the crowbar and
continued to swear . . . that [Applicant] came into the house with the crowbar; that the children were in the living room.
[Brother] said that he got his shotgun and told [Applicant] to leave. [Brother said] he was in fear for the safety of his
children and just wanted [Applicant] out of the house . . . when [Applicant] left the house he hit the handrail again with
the crowbar, then threatened [Brother] with the crowbar, saying he would hit him with it. . . if [Brother] did not stop
‘saying stuff’ about his wife.”  Government Exhibit 10 at 3.       
Applicant testified that an unknown person at a party gave him a marijuana cigarette, which he put in his11
pocket, intending to take it to his girlfriend.  The police stopped him as he was illegally walking across a bridge and
discovered the marijuana.  Tr. at 33, 67.  
4
rehabilitation.  There must be ‘clear evidence of successful rehabilitation’ considering the record as
a whole.”   A Judge’s failure to analyze a case in this way can constitute reversible error.4 5
In the case under review, the Judge stated, “The most recent arrest in 2004 is [Applicant’s]
only alcohol related incident and he has taken steps to avoid a recurrence.  The second most recent
arrest in 2000 appears to have been a relatively minor matter resulting in a ticket and a fine.  The rest
occurred over six years ago.  There is clear evidence of rehabilitation from the changes in his conduct
and the fact that he has had no difficulties since 2004.”   The Judge’s analysis contains no discussion6
of the record as a whole, noting only that most of Applicant’s misconduct occurred more than six
years prior to the close of the record.  In so doing, it fails to explain why a pattern of arrests that
spans a period of over twenty years and includes carrying a dangerous weapon,  domestic7
disturbance,  assault on a minor,  communicating threatening language,  possession of marijuana,8 9 10 11
“I was in the parking lot of a restaurant and I backed into this car.  I tapped this car, and then when I drove12
off, supposedly there was either an off duty police officer or another police officer, and he said he yelled at me as I was
leaving the parking lot.  Then down the road the other police pulled me over and said, “You were in an accident in the
parking lot and you took off.”  I said “No, I wasn’t.  I tapped the back of a car and I left the parking lot.”  Tr. at 25-26.
“Q: You were out at dinner . . . ?  A: Yes.  Q: . . . What were you drinking?  A: Budweiser.  Q: . . . [H]ow13
many do you believe you had?  A: Six, from six at night to midnight . . . Q: . . . Did you have to take a breathalyzer?  A:
I refused to take a breathalyzer . . . because I didn’t understand why I was getting pulled over in the first place.  Q: Okay,
but he’s a police officer.  A: Right.  Q: So why did you refuse the direction of a police officer?  A:   Like I said, I just
didn’t  – he wouldn’t give me a real reason why he pulled me over.”  Tr. at 70-71.     
Decision at 3.  14
Tr. at 64.  15
Decision at 4.  16
5
hit and run,  and DUI  is not recent simply due to the elapse of three years between the last offense12 13
and the date of the Judge’s decision.  Indeed, the seven year gap between the assault charge and the
marijuana possession militates against a conclusion that Applicant’ misconduct is sufficiently
attenuated so as to resolve the security concerns which it raises.  See ISCR Case No. 04-12680 at 3
(App. Bd. May 21, 2007) (A Judge’s decision must be reasonable in light of the contrary record
evidence.)
Similarly, the absence of a meaningful evidentiary discussion vitiates the Judge’s conclusion
that Applicant has met his burden of persuasion on rehabilitation.  The Judge noted Applicant’s
attendance at anger management classes and an alcohol rehabilitation program.  However, again he
did not relate the significance of the seven year gap to the question of Applicant’s rehabilitation.
Neither does the Judge discuss in sufficient detail the record evidence underlying the offenses,
evidence which is inconsistent with his opinion that most of Applicant’s misconduct concerns the
“exercise of bad judgement.”   For example, concerning the dangerous weapon charge, Applicant14
testified that he handed a friend the brass knuckles to assist in a fistfight against a third person.
Government Exhibit 10, a police report describing the July 1991 breach of peace, reports that
Applicant brandished a crowbar at his brother, threatening him.  Applicant testified that at one point
he threatened to kill his brother.   Government Exhibit 9, another police report, describes an assault15
on a 13-year old boy, which left bruising.  Applicant also testified about the marijuana incident, in
which he obtained a joint as a present for his girlfriend, and the DUI charge, in which he refused a
policeman’s directive to take a breathalyser.    
As a matter of common sense, any evaluation of Applicant’s rehabilitation must take into
account the inherent seriousness of his criminal conduct and explain why the mere passage of three
years from the last offense constitutes “clear evidence of successful rehabilitation.”   The Judge
acknowledges that Applicant has had “difficulty with anger management and authority issues.”16
However, his own findings and the record evidence suggest that the latest two incidents both
involved refusing the orders of  policemen, implying that Applicant’s problems with authority are
“[Applicant] has had a series of seven charges or arrests from the time he was 18 in 1982 over a 22 year period17
until 2004 when he was 41.  All were separated by at least four years except for two incidents in 1991 and two in 1999
and 2000 . . . Applicant impressed me . . . as a hard-working person whose anger issues had been a material cause of his
sporadic problems with the law.”  Decision at 3, 5.
ISCR Case No. 03-27170 at 5 (App. Bd. May 5, 2006).  18
See U.S. v. Bottone, 365 F. 2d 389, 392 (2d Cir. 1966), cert. denied 385 U.S. 974 (1966) (“The trier is entitled,19
in fact bound, to consider the evidence as a whole; and, in law as in life, the effect of this generally is much greater than
the sum of the parts.”) See also Schulz v. Secretary of HEW, 1987 WL 15314 (DC NJ 1987) (unreported decision),
reversing an administrative law judge decision which considered various pieces of medical evidence separately rather
than as a whole.  “[The ALJ] arrived at [his] judgement through a piecemeal analysis of the medical evidence,
considering separately rather than cumulatively the effects of plaintiff’s conditions.  Thus, the ALJ could not determine
the full extent of plaintiff’s disability.”  
Applicant testified that he went to his brother’s door, yelling.  He stated that he did not enter the house.  The20
brother came to the door and produced a shotgun, at which point Applicant stated that he went to his car to get the
crowbar.  Tr. at 60-64.  Government Exhibit 10 contains a summary of Applicant’s statement to the police.  “[Applicant]
said he had gone into his brother’s home, telling him to leave his wife alone, that he’s had enough of the rumors.  That
as he was getting in his pick-up truck, he saw his brother standing in the door of the apartment holding a shotgun, so
[Applicant] got out of the pick-up with the crowbar . . .”  Compare with the brother’s version set forth in Note 10 above.
Tr. at 81. Compare with the victim’s account, described in Note 9 above.  The Police report states that the21
victim’s account was corroborated by other witnesses.  Government Exhibit 9 at 3.  
6
not merely sporadic, as the Judge described them, but ongoing.   Given that Applicant’s seven year17
hiatus in criminal conduct was followed by incidents in 1999, 2000, and 2004 which indicate at the
very least difficulty with self-control and with submission to legitimate authority, we conclude that
Applicant’s rehabilitation evidence is “insufficient to rise to the level of ‘clear evidence of
rehabilitation’ required under Mitigating Condition 6.”18
We have also considered the Judge’s whole person analysis.  While the Judge properly gave
weight to Applicant’s attendance at various rehabilitation programs, his difficult childhood, and his
changed family circumstances, he minimized the seriousness of Applicant’s misconduct, viewing
it as a string of relatively isolated instances of poor judgement rather than a pattern of criminal
behavior, much of it violent.   Additionally, the Judge did not discuss apparent discrepancies19
between Applicant’s versions of the two 1991 incidents and those reflected elsewhere in the record
evidence.  For example, regarding the July incident, Applicant presents his brother as more of an
aggressor than is depicted in the police report.   Also, Applicant claims he did not cause the child20
victim to strike a tree, as Government Exhibit 9 states.   After considering the Judge’s  findings in21
light of the record as a whole, we conclude that the Judge’s favorable decision is arbitrary,
capricious, and contrary to law.
7
Order
The decision of the Judge granting Applicant a security clearance is REVERSED.
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: James E. Moody             
James E. Moody
Administrative Judge
Member, Appeal Board