KEYWORD: Guideline E
DIGEST: As the trier of fact the Judge has to weigh the evidence as a whole and decide whether
the favorable evidence outweighs the unfavorable or vice versa.  The Judge’s finding that
Applicant engaged in academic misconduct is sustainable.  Adverse decision affirmed.
CASENO: 06-22400.a1
DATE: 12/04/2007
DATE: December 4, 2007
In Re:
Applicant for Security Clearance
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ISCR Case No. 06-22400
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 December 22, 2006, DOHA issued a statement of reasons (SOR) advising Applicant
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
The Judge made formal findings favorable to Applicant on two other SOR allegations, one alleging a cheating1
incident at University A in 2000 and another alleging that Applicant was advised of the local criminal tresspass law as
he was being escorted off campus by campus police in April 2004 after being expelled from University B. 
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a hearing.  On July 30, 2007, after the hearing, Administrative Judge Edward W. Loughran 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 was arbitrary,
capricious, or contrary to law.  Because Applicant fails to establish error on the part of the Judge,
the Board affirms the Judge’s decision.
This case involves allegations of academic dishonesty.  One SOR allegation alleges that
Applicant was found guilty of plagiarism by University A in 1999.  On appeal, Applicant does not
dispute the allegation or the underlying conduct.  He does argue that the Judge should have
concluded that the conduct was mitigated.  Another SOR allegation alleges that Applicant was found
guilty of academic misconduct by University B in November 2003.  While Applicant admits the
historical fact of the finding of misconduct by University B, he denies the underlying conduct and
alleges error on the part of the Judge for finding that the underlying conduct occurred.  Additionally,
Applicant argues that consideration of the “whole person” mandated a favorable decision.  1
Applicant argues that the 1999 act of plagiarism is mitigated because of the passage of time
and that, in the eyes of University A, his conduct was mitigated because they changed his grade from
a grade indicating academic dishonesty to a straight “F.”  Once the government presents evidence
raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶
E3.1.15.  The application of Adjudicative Guidelines disqualifying and mitigating conditions does
not turn simply on a finding that one or more of them applies 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).  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.  In this case, the Judge did not analyze the 1999 plagiarism in
isolation, but instead properly considered its security significance with reference to other evidence
in the record, including a subsequent instance of academic dishonesty.  Applicant’s disagreement
with the Judge’s weighing of the record evidence, or his ability to argue for a different interpretation
of the evidence, is not sufficient to demonstrate the Judge weighed the evidence in a manner that is
arbitrary, capricious, or contrary to law.
Applicant argues that he was not guilty of academic dishonesty while enrolled in University
B in 2003.  He asserts that the university was engaged in unjustified retaliatory action against him
for his actions in an unrelated matter.  Applicant also asserts that there was insufficient documentary
evidence to support a finding that he engaged in academic misconduct.  We have reviewed the
Judge’s findings and the record as a whole, including Applicant’s hearing testimony.  The Judge’s
finding that Applicant engaged in academic misconduct at University B in 2003 is based on
substantial evidence and reflects a reasonable interpretation of the record evidence.  See 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)).
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Applicant also argues that considering him as a whole person, the Judge’s decision must be
reversed.  He points to his academic achievements and his successful work history and reputation
since the instances of academic dishonesty.  A review of the Judge’s decision indicates that the Judge
weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying
circumstances, and considered the possible application of relevant mitigating conditions and factors.
He reasonably explained why the evidence which Applicant had presented in mitigation was
insufficient to overcome the government’s security concerns.  The Judge has articulated a rational
explanation for his unfavorable determination under the disqualifying and mitigating factors as well
as the whole-person concept. 
         Order
The decision of the Judge denying Applicant a security clearance is  AFFIRMED.
Signed: Jeffery D. Billett           
Jeffrey D. Billett
Administrative Judge
Member, 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