KEYWORD: Guideline E
DIGEST: The Board cannot determine with confidence that the Judge based his decision on
available record evidence .  The Judge’s language in footnote 2 of the decision suggests that the
Judge may well have excluded or seriously discounted relevant record evidence without adequate
justification.  Favorable decision remanded.
CASENO: 05-06723.a1
DATE: 11/14/2007
DATE: November 14, 2007
In Re:
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Applicant for Security Clearance
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ISCR Case No. 05-06723
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Fahryn Hoffman, Esq., Department Counsel
FOR APPLICANT
Joyce E. Peters, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On February 10, 2006, DOHA issued a statement of reasons (SOR) advising Applicant
Decision at 3.1
Decision at 4.2
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of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) of
Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant
requested a hearing.  On July 19, 2007, after the hearing, Administrative Judge Christopher Graham
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 raised the following issues on appeal: whether the Judge’s analysis
failed to consider the case in light of the record as a whole; and whether the Judge’s whole person
analysis is arbitrary and capricious in that he failed to consider significant contrary record evidence
and whole person factors.  Finding error we remand the case to the Judge for the issuance of a new
decision.
Whether the Record Supports the Judge’s Factual Findings
A.  Facts
The Judge made the following findings: Applicant is employed by a federal contractor.
Married with two children, he holds a bachelor’s degree and has served in the Coast Guard.
While serving with a police department, Applicant was demoted from police corporal to
police officer for having made a false statement to an internal affairs investigation.  Specifically he
denied having spoken with another police official about the matter under investigation, although he
subsequently acknowledged that he had in fact done so.  He stated that he made the false statement
to protect the official, whom he subsequently married.  Applicant filed a grievance over the
demotion, but his superiors affirmed the decision.
Applicant received a counseling for failing to complete an accident report.  He had responded
to an accident and did not obtain local contact information for one of the parties.  He submitted the
report without the information, despite having been directed to obtain it by his supervisor.
Approximately a month after this, Applicant received a “supervisory contact” for improper use of
sick leave.  The Judge found that Applicant’s supervisor harassed him for reasons connected with
“racial issues.”   Applicant called in sick because he could not stand the harassment.1
Applicant received administrative discipline for two other incidents, one in which he failed
to turn in a confiscated license plate, having placed it in the trunk of his police car and then turning
the car over to another officer before retrieving it.  On another occasion he received administrative
discipline for having placed a personally owned “blue light” on an unmarked police car, although
the police manual permitted the use only of attached equipment.  
In 2003 Applicant arrested a suspect for possession of crack cocaine.  The Judge stated that
the suspect accused Applicant of using excessive force, which Applicant “vigorously denied.”   The2
Judge went on to find: “The government alleges that he was investigated by the internal affairs
department, and it was recommended that he be terminated.  Applicant never received any written
Id.3
Decision at 5.4
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notice about the action, his final performance review summary makes not mention of the incident,
and he would have been entitled to present evidence in his own defense but was never given notice
of or an opportunity to be heard in connection with any termination proceeding.”   Applicant3
voluntarily resigned from the police department on March 25, 2003.  
The Judge noted in his findings that one of Applicant’s witnesses was a fellow police officer,
who testified that the police department had been poorly led, that superior officers would often
harass subordinates, that punishments were not consistent, and that grievances “went nowhere.”  4
B.  Discussion
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.  
Throughout her brief, Department Counsel identifies record evidence which she contends the
Judge did not properly consider.  We will address this in the Conclusions section. 
Whether the Record Supports the Judge’s Ultimate Conclusions
 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.  
As a preliminary matter the Board must address an issue raised on appeal as to whether the
Judge properly considered the record as a whole.  Although there is a general presumption that a
Judge has considered all the record evidence, that presumption is qualified.  The qualification is
“unless the Judge specifically states otherwise.”  See, e.g., ISCR Case No. 06-10950 at 2 (App. Bd.
Jul. 25, 2007).  In this case the Judge comes very close to stating that he has not considered all the
record evidence.
The Judge states in Footnote 2 of the Decision: “After reviewing the transcript, I have
decided to adopt Applicant’s answers to the SOR as the basis for my findings of fact.  His answers
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state the case and present the issues much more succinctly than trying to cobble together gleanings
from the transcript.”  
The Board cannot determine with confidence that the Judge has based his decision on
available record evidence.  The above quoted language suggests that the Judge may well have
excluded relevant evidence, or at least seriously discounted it, without adequate justification.
Furthermore, Department Counsel correctly notes that in at least one instance, Applicant himself
acknowledged at the hearing that his answer to the SOR was “written incorrectly.”  See Transcript,
at p.113.  Thus, based on his notion that evidence in the SOR answer was more “succinct” than
evidence in the transcript, it appears that the Judge may have failed to consider properly evidence
that conflicts with evidence in the SOR answer.  A Judge is required to weigh conflicting evidence
and to resolve such conflicts based upon a careful evaluation of factors such as the comparative
reliability, plausibility and ultimate truthfulness of conflicting pieces of evidence.  In this case, the
Judge may have excluded a large block of evidence solely as a result of his dissatisfaction with the
presentation of that evidence.  To have done so is error.  In light of this issue it is premature to
address any other appeal issue.  The case is remanded to the Judge to issue a new decision in which
he evenhandedly considers all record evidence.
Order 
The Judge’s favorable security clearance decision is REMANDED.
 
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
DISSENTING OPINION OF ADMINISTRATIVE JUDGE JAMES E. MOODY
I respectfully disagree with my colleagues.  I do not interpret the footnote in question as
constituting the Judge’s admission that he did not consider the transcript, insofar as he states
explicitly that he reviewed it.  I take it to mean that, after his review of the transcript, he concluded
that the Applicant’s SOR answers were founded upon substantial evidence. See Directive  ¶
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E3.1.32.1.  Whether this conclusion is reasonable is a matter that, having been raised by Department
Counsel, should be resolved by the Board in its exercise of appellate review.  Indeed, whether a
Judge’s decision reflects a reasonable examination of relevant evidence is one of the criteria which
the Board applies in deciding whether a decision is arbitrary, capricious, or contrary to law.  See
ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006).  I would resolve this case on its merits
rather than remand it.  
Signed: James E. Moody           
James E. Moody
Administrative Judge
Member, Appeal Board