KEYWORD: Guideline E; Guideline J
DIGEST: When an Applicant alleges bias the issue is not whether Applicant personally believes
the Judge was biased or unfair.  Rather the issue is whether the record contains any indication
that would lead a reasonable person to question the fairness and impartiality of the Judge.  There
is a rebuttable presumption that the Judge considered all the record evidence.  The Judge is not
required to discuss every piece of evidence.  Adverse decision affirmed
CASENO: 06-17409.a1
DATE: 10/12/2007
DATE: October 12, 2007
In Re:
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Applicant for Security Clearance
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ISCR Case No. 06-17409
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 16, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of
the basis for that decision—security concerns raised under Guideline E (Personal Conduct) and
Applicant includes two character reference letters as attachments to his brief.  The Board may not consider new1
evidence on appeal.  See Directive ¶ E3.1.29.  Accordingly, we may not consider Applicant’s attachments, and they do
not demonstrate error on the part of the Judge.
2
Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested that the case be decided on the written record.  On May
3, 2007, after considering the record, Administrative Judge Joseph Testan 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 issues on appeal: whether the Judge was biased; whether the
Judge’s unfavorable clearance decision under Guidelines E and J is arbitrary, capricious, or contrary
to law.
(1) Applicant argues that the Judge was biased, essentially based upon the fact that the Judge
did not find Applicant’s favorable evidence sufficient to mitigate the government’s security
concerns.  The Board does not find this argument persuasive.
There is a rebuttable presumption that a Judge is impartial and unbiased, and a party seeking
to rebut that presumption has a heavy burden of persuasion.  See, e.g., ISCR Case No. 02-08032 at
4 (App. Bd. May 14, 2004).  The issue is not whether Applicant personally believes the Judge was
biased or unfair.  Rather, the issue is whether the record contains any indication the Judge acted in
a manner that would lead a reasonable person to question the fairness and impartiality of the Judge.
See, e.g., ISCR Case No. 06-09462 at 2 (App. Bd. Jul. 19, 2007).  Lack of partiality is not
demonstrated merely because the Judge made adverse findings or reached unfavorable conclusions.
Id.  Moreover, even if an appealing party demonstrates error by the Judge, proof of such error,
standing alone, does not demonstrate the Judge was biased or prejudice.  See, e.g., ISCR Case No.
04-03834 at 2 (App. Bd. Jul. 2, 2007).  
Applicant has not met the heavy burden of persuasion noted above, in that he fails to identify
anything in the record below that indicates or suggests a basis for a reasonable person to question
the fairness, impartiality, or professionalism of the Judge. See, e.g., ISCR Case No. 03-00740 at 2
(App. Bd. Jun. 6, 2006).
(2) Applicant also argues that the Judge should have concluded, as a matter of law, that the
security concerns raised by his multiple falsifications were mitigated by Applicant’s favorable
evidence, particularly the fact that: (a) Applicant had admitted to his multiple falsifications and had
subsequently provided the correct information, and (b) Applicant had held a security clearance for
nearly 30 years without a security violation, infraction, or incident.  As part of his argument,
Applicant notes that the text of the Judge’s decision did not mention his years of dedicated service
and his outstanding job performance.   Applicant’s argument does not demonstrate that the Judge1
erred. 
There is a rebuttable presumption that the Judge considered all the record evidence unless
he specifically states otherwise. See, e.g., ISCR Case No. 04-08806 at 2 (App. Bd. May 8, 2007).
Moreover, the Judge is not required to cite or discuss every piece of record evidence.  See, e.g., ISCR
Case No. 05-03143 at 2 (App. Bd. Dec. 20, 2006).
The record in this case was limited.  Applicant elected to have the case decided on the written record, and then2
filed a two page statement in response to the government’s file of relevant material (FORM).  The government’s FORM
consisted of only four documents—Applicant’s two security clearance applications, the SOR, and Applicant’s answer
to the SOR.  There were no statements from independent witnesses, and the Judge did not have an opportunity to assess
the credibility of Applicant’s statements in the context of a hearing.  The Judge based his decision in part on “. . . the fact
that applicant offered no positive evidence concerning his character, honesty, and integrity from people who know him
well (e.g., family, friends, coworkers, supervisors) . . .” Decision at 3.
3
The absence of security violations does not bar or preclude an adverse security clearance
decision.  The federal government need not wait until an applicant actually mishandles or fails to
properly handle classified information before it can deny or revoke access to such information.  See
ISCR Case No. 05-07747 at 2 (App. Bd. Jul. 3, 2007) citing Adams v. Laird, 420 F. 2d 230, 238-239
(D.C. Cir. 1969), cert. denied, 397 U.S. 1039 (1970). An applicant with good or exemplary job
performance may engage in conduct that has negative security implications. See, e.g., ISCR Case No.
99-0123 at 3 (App. Bd. Jan. 11, 2000).  The Directive's Guidelines set forth a variety of examples
of off-duty conduct and circumstances which are of security concern to the government and mandate
a whole-person analysis to determine an applicant's security eligibility.  A whole-person analysis is
not confined to the workplace.  See ISCR Case No. 03-11231 at 3 (App. Bd. Jun. 4, 2004). 
“[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 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 that the Judge weighed the evidence or reached conclusions in a manner that is arbitrary,
capricious, or contrary to law.
The Applicant has not met his burden of demonstrating that the Judge erred in concluding
that the security concerns raised by Applicant’s two falsifications 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 security concerns raised by Applicant’s two falsifications were 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 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.   He reasonably explained2
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
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). 
4
Given the record that was before him, the Judge’s ultimate unfavorable clearance decision under
Guidelines E and J is sustainable.
Order
The decision of the Judge denying Applicant a security clearance 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