KEYWORD: Guideline B
DIGEST: The Judge’s controverted findings of fact are based on substantial evidence or
reasonable inferences from the record evidence or harmless error that would not change the
outcome of the case.  Applicant’s alternative interpretation of the evidence is insufficient to
demonstrate error.  Adverse decision affirmed.
CASENO: 06-19923.a1
DATE: 02/28/2008
DATE: February 28, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 06-19923
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James F. Duffy, Esq., Department Counsel
FOR APPLICANT
Pro Se
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On December 14, 2006, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision—security concerns raised under Guideline B (Foreign Influence) of
Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant
See Decision at 2; Transcript at 36; Government Exhibit 1 at 1; Applicant’s Exhibit B at 1.1
The Judge stated that Applicant had telephone contact with his sister “when he calls his parents” and had2
“telephone contact once a week” with his father. See Decision at 3.  The evidence indicates that Applicant had telephone
contact with his sister “various amounts of time, exact amounts unknown” and “telephone contact once a week” with his
father when his mother is in Taiwan. See Applicant’s Exhibit B at 1. See also Transcript at 72 and 74.
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requested a hearing.  On September 27, 2007, after the hearing, Administrative Judge Robert J.
Tuider 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 issue on appeal: whether the Judge’s adverse security
clearance decision under Guideline B is arbitrary, capricious, or contrary to law.
Applicant argues that the Judge’s adverse clearance decision should be reversed because the
Judge erred in his findings as to the date Applicant immigrated to the U.S., the date he became a U.S.
citizen, and the extent of his telephone contact with his mother, father, and sister in Taiwan.  He also
argues the Judge erred in his weighing of the evidence.  The Board does not find Applicant’s
arguments persuasive.
The Board’s review of a Judge’s findings 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 finding from
being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620,
(1966).
The Judge’s findings as to the date Applicant immigrated to the U.S., the date he became a
U.S. citizen, and the extent of his telephone contact with his mother, are based on substantial
evidence.    The Judge’s findings as to the extent of Applicant’s telephone contact with his sister and1
father constitute either reasonable inferences that could be drawn from the record evidence or
harmless error in that they would not change the outcome of the case.   Applicant has not met his2
burden of demonstrating that the Judge’s material findings with respect to his circumstances of
security concern do not reflect a reasonable or plausible interpretation of the record evidence.
Considering the record evidence as a whole, the Judge’s material findings of security concern are
sustainable.  See, e.g., ISCR Case No. 06-21025 at 2 (App. Bd. Oct. 9, 2007).  
Once the government 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 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, 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 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,
Decision at 5-8.3
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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 the Judge
weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary
to law.
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.   The Judge gave Applicant partial3
credit under the relevant mitigating conditions, but reasonably explained why the evidence which
Applicant had presented was insufficient to overcome the government’s security concerns.  The
Judge’s decision exhibits a discerning weighing of a number of variables to reach a commonsense
determination. Directive ¶ E2.2.  In so doing, the Judge articulated a reasonable concern that
Applicant's circumstances created a conflict of interest that could potentially make him vulnerable
to coercion, exploitation or pressure.  That security concern is based on close family ties in Taiwan,
considered in the context of the overall political/security profile of that country vis-a-vis the United
States.  Applicant offers an alternative interpretation of the record evidence.  However, that
alternative interpretation of the record evidence is insufficient to render the Judge’s interpretation
arbitrary, capricious or contrary to law.  See, e.g., ISCR Case No. 03-19101 at 2 (App. Bd. Oct. 13,
2006).  The Judge has articulated a rational explanation for his unfavorable determination under the
disqualifying and mitigating factors and the whole-person concept, and there is sufficient record
evidence to support that determination—given the standard that required the Judge to err on the side
of national security.  See, e.g, ISCR Case No. 06-04371 at 3 (App. Bd. Oct. 18, 2007).
Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Michael D. Hipple
Michael D. Hipple
Administrative Judge
Member, Appeal Board
Signed: Jean E. Smallin    
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: William S. Fields   
William S. Fields
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Administrative Judge
Member, Appeal Board