KEYWORD: Guideline E; Guideline J
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 evidence, or vice versa.  Given the record in
this case the Judge’s adverse decision is affirmable.  Adverse decision affirmed.
CASENO: 06-26061.a1
DATE: 03/17/2008
DATE: March 17, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 06-26061
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro Se
In evaluating the Guideline J allegations, the Judge noted: “Applicant may very well have been able to
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overcome the Government’s prima facie case had he offered credible evidence in mitigation.  However, applicant
offered no evidence in mitigation, and without such evidence, there is no basis upon which to conclude he has
overcome the Government’s security concerns . . .”  Decision at 3.
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The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On June 6, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the
basis for that decision—security concerns raised under Guideline E (Personal Conduct) and
Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested that the case be decided on the written record.  On
December 5, 2007, after considering the record, Administrative Judge Joseph Testan 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 erred in concluding that
Applicant’s falsification of his security clearance application was deliberate.
Applicant contends that he did not deliberately falsify his security clearance application by
failing to disclose an arrest on charges of Driving Under the Influence of Alcohol and Driving While
Having a Measurable Blood Alcohol of .08% or More by Weight.  In support of this contention, he
argues that he thought he was only required to disclose convictions.  Applicant has not demonstrated
that the Judge erred.
Once the government presents evidence raising security concerns, the burden shifts to the
applicant to establish mitigation.  Directive ¶ E3.1.15.  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. 06-17691 at 3 (App. Bd. Jul.19,
2003).  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 his case decided on the written administrative record and then did
not respond to the government’s file of relevant material (FORM).  As a result, the Judge did not
have an opportunity to question him about the omission and evaluate his credibility in the context
of a hearing.   A review of the Judge’s decision indicates that the Judge considered Applicant’s1
explanation for why he failed to disclose the information in question.  The Judge was not bound, as
a matter of law, to accept or reject Applicant’s explanation.  The Judge considered Applicant’s
explanation in light of the record evidence as a whole, and concluded there was a sufficient basis to
find that Applicant’s omission was deliberate and intentional.  Given the limited record that was
before him, the Judge’s finding of deliberate falsification is sustainable, and his ultimate unfavorable
clearance decision under Guidelines E and J not arbitrary, capricious nor contrary to law.  See
Directive ¶ E3.1.32.1; ISCR Case No. 04-03849 at 2-3 (App. Bd. Jan. 26, 2006). 
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Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Jean E. Smallin   
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: William S. Fields  
William S. Fields
Administrative Judge
Member, Appeal Board
Signed: James E. Moody     
James E. Moody
Administrative Judge
Member, Appeal Board