KEYWORD: Guideline C; Guideline B
DIGEST: Applicant’s challenges to the Judge’s finding fail either because they relate to
favorable conclusions, rely on new evidence, the findings are based on substantial evidence, the
findings are based on reasonable inferences from the record, or the error is harmless.  Adverse
decision affirmed.
CASENO: 06-24013.a1
DATE: 03/04/2008
DATE: March 4, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 06-24013
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro Se
The Judge found in favor of Applicant under Guideline C.  That favorable finding is not at issue on appeal.
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For example, Applicant argues that the Judge erred in finding that Applicant had two sisters, age 46 and
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45, and that her mother died in 1990; when in fact her sisters were age 54 and 45, and her mother died in 1996.
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The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On February 12, 2007, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision—security concerns raised under Guideline C (Foreign Preference) and
Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested the case be decided on the written record.  On October
26, 2007, after considering the record, Administrative Judge Juan J. Rivera denied Applicant’s
request for a security clearance.  Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and
E3.1.30.1
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
there were multiple errors in the Judge’s findings.  The Board does not find Applicant’s argument
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).
Some of the errors asserted by Applicant relate to the Guideline C allegations which were
resolved in her favor and, therefore, are not at issue on appeal.  Other assertions of error are based
on new evidence in the form of Applicant’s statements in her brief as to various details about her
family which did not appear in the record below.  The Board may not consider this new evidence on
appeal.  See Directive ¶ E3.1.29.  Its submission does not demonstrate error on the part of the Judge.
See, e.g., ISCR Case No. 06-00184 at 2 (App. Bd. Jul. 24, 2007).  
With respect to the balance of the findings at issue, the Board concludes that they are based
on substantial evidence, they constitute reasonable inferences that could be drawn from the record,
or they involve harmless error in that it would not change the outcome of the case.   Applicant has2
not met her burden of demonstrating that the Judge’s material findings with respect to her
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
Decision at 6-8.
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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,
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.
Applicant elected to have her case decided upon the written record—a circumstance which
meant the Judge did not have an opportunity to question Applicant about her family ties and evaluate
her credibility in the context of a hearing.  Most of Applicant’s submission in response to the
government’s File of Relevant Material (FORM) related to the Guideline C security concerns which
were resolved in her favor.  Applicant has not met her burden of demonstrating that the Judge erred
in concluding that the Guideline B allegations had not been mitigated—given the limited record in
this case.  Although Applicant strongly disagrees with the Judge’s decision, she has not established
that it is arbitrary, capricious, or contrary to law.  See Directive ¶ E3.1.32.3.
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 found in favor of3
Applicant under Guideline C, but articulated a rational basis for not favorably applying any
mitigating conditions or factors with respect to the Guideline B allegations.  He reasonably explained
why the evidence which Applicant had presented in mitigation 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 some instances, as noted
earlier, this process led to favorable findings for Applicant.  However, the Judge also articulated a
reasonable concern that Applicant's circumstances created a conflict of interest that could potentially
make her vulnerable to coercion, exploitation or pressure.  That 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).
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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