KEYWORD: Guideline E
DIGEST: A Judge has broad discretion in how to write a security clearance decision.  The Judge
is not required to cite or discuss every piece of evidence.  Adverse decision affirmed.
CASENO: 07-03289.a1
DATE: 02/13/2008
DATE: February 13, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-03289
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 May 10, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the
basis for that decision—security concerns raised under Guideline E (Personal Conduct) of
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Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant
requested that the case be decided upon the written record.  On September 28, 2007, after
considering the record, Administrative Judge Martin H. Mogul 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 is arbitrary, capricious or contrary to law.
Applicant argues that the Judge’s adverse security clearance decision is arbitrary, capricious
and contrary to law because the Judge only partially quoted a statement made by Applicant in Item
5 of the government’s File of Relevant Material in his findings of fact.  The Board does not find this
argument persuasive.
A Judge has broad discretion in how to write a security clearance decision subject to the legal
constraints of the Directive and basic concepts of due process.  See e.g., 03-07245 at 4 (App. Bd.
May 20, 2005).  There is a rebuttable presumption that the Judge considered all the record evidence
unless he specifically states otherwise. See, e.g., DOHA Case No. 96-0228 at 3 (App. Bd. Apr. 3,
1997).  The Judge is not required to cite or discuss every piece of record evidence.  See, e.g., DISCR
Case No. 90-1596 at 5 (App. Bd. Sep. 18, 1992).  After reviewing the record, the Board concludes
that the Judge reasonably considered the evidence as a whole, including Item 5, and that his material
findings of security concern are sustainable.
Once there has been a concern articulated regarding an applicant’s security clearance
eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See
Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9  Cir. 1990), cert. denied, 499 U.S. 905 (1991).  Afterth
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. 06-10950 at 2 (App. Bd. Jul. 25, 2007).
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.  See, e.g.,
ISCR Case No. 05-11134 at 2 (App. Bd. Nov. 16, 2007).  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.  See, e.g., ISCR Case No. 05-07183 at 2 (App. Bd.
Jun. 26, 2007).
Applicant has not met his burden of demonstrating that the Judge erred in concluding that
the personal conduct allegations 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.
In this case the Judge weighed the mitigating evidence offered by Applicant against the
recency and seriousness of the disqualifying conduct, and reasonably explained why the evidence
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which 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 record 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).  Given the record that was
before him, the Judge’s ultimate unfavorable security clearance decision under Guideline E is
sustainable.
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
Administrative Judge
Member, Appeal Board