KEYWORD: Guideline J; Guideline E
DIGEST: Once the government presents evidence raising security concerns the burden is on the
applicant to establish mitigation.  The government need not wait until an applicant actually
mishandles classified information before it can deny or revoke access to such information. 
Adverse decision affirmed.
CASENO: 03-06241.a1
DATE: 11/16/2007
DATE: November 16, 2007
In Re:
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Applicant for Security Clearance
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ISCR Case No. 03-06241
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Jeremiah Donovan, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On August 5, 2005, DOHA issued a statement of reasons advising Applicant of the basis
for that decision—security concerns raised under Guideline J (Criminal Conduct) and Guideline E
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(Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended
(Directive).  Applicant requested a hearing.  On June 29, 2007, after the hearing, Administrative
Judge Elizabeth M. Matchinski denied Applicant’s request for a security clearance.  Applicant timely
appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary,
capricious, or contrary to law, because the Judge failed to find that Applicant’s conduct was
mitigated.
The Judge made the following relevant findings of fact:  Applicant used marijuana with
varying frequency from 1971 until at least 1994.  Applicant was convicted of conspiracy to distribute
illegal drugs in about 1974.  Applicant sold marijuana for profit to a coworker while working for a
defense contractor and holding a security clearance.  In 1994, Applicant was convicted of selling
illegal drugs.  When Applicant completed a security clearance application (SF 86) in 2002, he listed
his 1994 drug conviction, but not the one in 1974.  
“[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.  In this case, Applicant admitted most of the conduct.  With regard to the
falsification if his SF 86, Applicant testified that he did not include his 1974 conviction because he
thought it did not have to be listed because he believed it came under the Federal Controlled
Substances Act exception to the question and had been expunged.  The Judge was not required, as
a matter of law, to accept Applicant’s testimony.  Rather, the Judge had to consider Applicant’s
statements in light of the record evidence as a whole.  See, e.g., ISCR Case No. 99-0005 at 3 (App.
Bd. Apr. 19, 2000).
Moreover, 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.  See, e.g., ISCR Case
No. 01-14740 at 7 (Jan. 15, 2003).  In this case, the Judge found some mitigation due to the passage
of time since the conduct at issue.  However, that did not compel the Judge to make a favorable
security clearance decision.  As the trier of fact, the Judge had to weigh the evidence as a whole and
decide whether the favorable evidence outweighed the unfavorable, or vice versa.  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.  See, e.g., ISCR Case
No. 06-17691 at 3 (App. Bd. Jul. 19, 2007).   
In this case, the Judge weighed the mitigating evidence offered by Applicant against the
seriousness of the disqualifying conduct.  The Judge considered the possible application of relevant
mitigating conditions and discussed why she did not apply them in Applicant’s case.  The Judge
explained why the evidence Applicant submitted 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).  
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In his brief, Applicant points out that he has been a dutiful employee for many years, has
never been accused of using marijuana on the job or allowing marijuana to affect his job
performance, and has not used marijuana since 1994.  The government need not wait until an
applicant actually mishandles classified information before it can deny or revoke access to such
information.  See 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. 06-10950 at 2 (App. Bd. Jul. 25, 2007).
The Directive’s Guidelines set forth a variety of examples of off-duty conduct and circumstances
which are of security significance.  Id.
Given the record that was before her, the Judge’s ultimate unfavorable clearance decision
under Guidelines J and E is sustainable.  
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Order
The Judge’s decision denying Applicant a security clearance is AFFIRMED.             
Signed: Michael Y. Ra’anan      
Michael Y. Raanan
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