KEYWORD: Guideline E; Guideline J
DIGEST: The Judge’s statements that had Applicant initially been truthful about his marijuana
use, he would have been denied his clearance, and that his falsifications were the sole
determining factor in the granting of his clearance are problematic.  Such language is not the
product of reasonable inference, and was speculative. The Board does not evaluate a passage in a
decision in isolation.  The Board will evaluate passages with reference to the decision as a whole,
when determining if the language has any harmful effect. The gravamen of the Judge’s adverse
security decision was his finding that Applicant deliberately concealed his drug use from the
government and did so to put his personal needs ahead of legitimate government interests. The
Judge also stressed the importance of truthfulness and honesty in those persons who hold
clearances and the desirability of giving clearances to those persons who are willing to be
scrupulously honest in dealing with classified information.  The Judge’s doubts about
Applicant’s ability to be trustworthy under such circumstances serve as an adequate basis for his
ultimate decision.  Applicant correctly points out that the Judge’s decision was bereft of any
mention of Guideline J mitigating factors.  As the Judge concluded that Guideline J disqualifying
factors were operative in the case, he was obligated to give some indication that he considered
Guideline J mitigating factors.  Failure to do so was error.  However, the Board views this error
as ultimately harmless in that the Judge’s ultimate decision is supportable given his sustainable
analysis under Guideline E. Adverse decision affirmed
CASENO: 07-04494.a1
DATE: 06/10/2008
DATE: June 10, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-04494
2
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Paul M. DeLaney, Esq., Department Counsel
FOR APPLICANT
Leslie McAdoo Gordon, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On September 25, 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 a hearing.  On January 31, 2008, after the hearing,
Administrative Judge John Grattan Metz, Jr. 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 issues on appeal: (1) whether the Judge relied heavily on
evidence that was neither contained in the written record, nor proffered by either party at the hearing;
(2) whether the Judge’s conclusion that no mitigating factors applied to Applicant’s case was
erroneous; and (3) whether the Judge’s whole-person analysis was arbitrary and capricious.  Finding
no harmful error, we affirm the Judge’s decision.
The Judge made the following findings of fact:  In the process of applying for a security
clearance, Applicant completed two security clearance questionnaires, one in December 2005 and
one in May 2006.  The first application was completed on-line with the help of his mother.  Question
24 of those applications asked him about drug use within the last seven years.  Applicant answered
“no” on both applications, even though he had used marijuana at least four times each during the
summer of 2001 and the fall of 2004.  Applicant later disclosed his marijuana use to his facility
security officer in September 2006.  Applicant knew that his company’s plan was to eventually grant
him access to sensitive compartmented information, and he knew the background investigation
would include a personal interview with an investigator and a polygraph examination.  Thus, his
drug use and falsifications could become an issue in the clearance process.  Before being contacted
by an investigator, Applicant prepared a written account of his drug use and falsifications, stating
that he concealed his drug use because be was very scared of admitting it to an authority figure and
his parents.  During an interview in October 2006, Applicant repeated this information to an
investigator, who noted in his report Applicant’s stated fear of embarrassment and not getting his
clearance as reasons for concealing his drug use.
The Judge concluded that Applicant deliberately concealed his drug use from the government
and did so knowing that his illegal drug use was of security concern to the government, and believing
The fact that Applicant’s conduct would have raised a security concern does not mean that he would have1
ultimately been denied a clearance after investigation.  However, Applicant’s citation to the Administrative Desk
Reference describes an analytical process in evaluating drug use that the government was prevented from engaging in
as a result of Applicant’s falsifications.  Thus, the government’s investigation was affected.
 See Footnote No. 1.  Also, in evaluating any claim that the Judge’s pronouncements about Applicant’s security2
clearance investigation are “speculative,” it is reasonable to assume that DOHA Administrative Judges have a passing
familiarity with the rudiments of the security clearance investigative process.
3
that his clearance was at risk if he told the truth.  The Judge concluded that Applicant misled both
his employer and the government, not withstanding Applicant’s claims that his principal reason for
concealing his drug use was fear of his parents’ reaction.  The Judge also concluded that none of the
Guideline E mitigating conditions applied, asserting specifically that Applicant’s revelations of his
falsehoods were not prompt.  The Judge also resolved the Guideline J allegation against Applicant
without any discussion.  The Judge did provide a detailed analysis of the case under the more general
factors listed in paragraph 2 (a) of the Adjudicative Guidelines, and concluded Applicant has not
mitigated the security concerns arising from his falsifications.   
Applicant asserts on appeal that the Judge relied upon evidence that was not contained in the
record when reaching his conclusions.  Specifically, Applicant states that throughout his decision,
the Judge mentions that Applicant obtained his security clearance only because of the falsifications
on his applications, and that, had he been honest, there would have been either a further inquiry into
his drug use or a denial of clearance.  The Applicant cites to such passages in the decision as “ . . .
based on [his] false answers, [he] obtained his clearance[s] . . . .  ” (Decision at 2), the government
“detrimentally relied” on Applicant’s falsifications in granting his clearance (Decision at 4),
Applicant “ . . . collected benefits from his falsifications–obtaining first his initial clearance, then
an interim upgrade.” (Decision at 4), that Applicant was willing to “benefit from his misconduct,”
(Decision at 5),  that Applicant “intended to . . . effect [sic] the course of his background
investigation . . . .” (Decision at 4), and “Applicant’s falsifications prohibited the government from
evaluating his illegal drug use in a timely fashion, and at a time when such recent drug use might
have raised significant security concerns.” (Decision at 4).  Applicant argues that these statements
by the Judge are not based on record evidence, are no more than speculative assumptions, and were
improperly relied upon by the Judge in making his adverse clearance decision.    
Some, but not all, of the Judge’s language cited by Applicant is problematic.  The Board does
not regard as error the Judge’s statements concerning the manner in which Applicant’s falsifications
affected the government’s investigation, including the timing of that investigation.  It is proper for
Judges to draw reasonable inferences from the record evidence and to make findings of fact based
on those inferences.  It was reasonable, and not speculative, for the Judge to infer that the subject of
Applicant’s falsifications—his drug use—would have raised security concerns for government
investigators at an early stage, had they known about it.   It was also reasonable for the Judge to infer1
that Applicant’s falsifications affected the manner in which the investigation was conducted and the
time it took to complete it.   The Judge’s observation that the government relied to its detriment on2
Applicant’s false answers when granting him his initial clearance is axiomatic.
4
More problematic are the Judge’s statements suggesting that had Applicant initially been
truthful about his marijuana use, he would have been denied his clearance, and that his falsifications
were the sole determining factor in the granting of his clearance.  Such language is not the product
of reasonable inference, and was speculative.  As a result of this error, the Board must evaluate
Applicant’s claim that it formed the basis for the Judge’s ultimate decision in the case.  In arguing
that the error was harmful, Applicant notes correctly that the Judge used this language several times
in his decision.  Notwithstanding this fact, the Board does not evaluate a passage, or even several
passages, in a decision in isolation.  See, e.g., ISCR Case No. 02-10216 at 6 n.4 (App. Bd. Jan 30,
2004).  Rather, the Board will evaluate such passages with reference to the decision as a whole, when
determining if the language complained of has any harmful effect.  In this case, after a consideration
of the entire record and the Judge’s decision as a whole, the Board concludes that the gravamen of
the Judge’s adverse security decision was his finding that Applicant deliberately concealed his drug
use from the government and did so to put his personal needs ahead of legitimate government
interests. The Judge also stressed the importance of truthfulness and honesty in those persons who
hold clearances and the desirability of giving clearances to those persons who are willing to be
scrupulously honest in dealing with classified information—even to the extent of reporting one’s
own breeches of security to the government.  The Judge indicated that he had doubts about
Applicant’s ability to be trustworthy under such circumstances, and those doubts serve as an
adequate basis for his ultimate decision against Applicant.
Applicant raises the issue of the Judge’s treatment of various mitigating factors in the case.
Central to Applicant’s argument is his interpretation of the Judge’s discussion of the mitigating
factors as indicating the Judge’s belief that there was no possibility that any of the Guideline E
mitigating factors could serve to overcome the government’s security concerns.  While Applicant’s
argument on this point is not a model of clarity, he appears to assert that, once the falsification was
established, the Judge viewed the case as one that could not be mitigated per se, and thus ignored
or failed to consider the mitigating factors.
There is a rebuttable presumption that the Judge considered all the evidence in the case unless
there is a clear statement to the contrary.  See, e.g., ISCR Case No. 03-15308 at 4 (App. Bd. Aug.
2, 2005).  There is also a presumption that federal officials and employees carry out their duties
properly and in good faith.  See, e.g., ISCR Case No. 00-0030 at 5 (App. Bd. Sep. 20, 2001).  With
these presumptions in mind, and after a review of the record and the Judge’s decision, the Board
concludes that the Judge did not ignore or categorically dismiss the mitigating factors in this case.
The Judge specifically mentions the fact that Applicant came forward to correct the falsification on
his own, and the Judge gives him some credit for it.   The Judge ultimately decided not to apply the
mitigating factor in Applicant’s favor however, owing to the fact that the coming forth could not be
considered “prompt.”  The fact that the Judge engaged in this specific analysis belies Applicant’s
assertion that he ignored the mitigating factors.  Applicant points out that none of the other Guideline
E mitigating factors were discussed by the Judge and that this lack of discussion equates to the
Judge’s failure to articulate a satisfactory explanation for the decision.  While a detailed and
comprehensive discussion of numerous mitigating factors is sometimes useful, there is no
requirement that a Judge provide a detailed analysis as to the applicability or non-applicability of
every disqualifying or mitigating factor listed under a particular Guideline.  Also, decisions of
5
DOHA Judges are not measured against a standard of perfection.  See, e.g., ISCR Case No. 95-0319
at 3 (App. Bd. Mar. 18, 1996).  In this case, under these facts and considering the mitigating factors
enumerated for application under Guideline E, the Board does not conclude that the Judge’s analysis
of potential Guideline E mitigating factors was inadequate or that his exposition of that analysis in
his decision was inadequate.  Applicant mentions on appeal that, during the hearing below, he cited
numerous mitigating factors that arguably applied to the facts of this case.  The fact that Applicant
disagrees with the Judge’s application of mitigating factors, or can articulate an alternative
interpretation of the record evidence that would bring such factors into more prominent play does
not establish that the Judge’s analysis was arbitrary, capricious, or contrary to law.  See ISCR Case
No. 06-08111 at 2 (App. Bd. Jul. 2, 2007).
Applicant correctly points out that the Judge’s decision was bereft of any mention of
Guideline J mitigating factors.  As the Judge concluded that Guideline J disqualifying factors were
operative in the case, he was obligated to give some indication that he considered Guideline J
mitigating factors.  Failure to do so was error.  However, the Board views this error as ultimately
harmless in that the Judge’s ultimate decision is supportable given his sustainable analysis under
Guideline E.               
Applicant argues that the Judge’s application of the whole person concept to this case was
arbitrary and capricious, because he did not examine relevant evidence, he failed to articulate a
satisfactory explanation for his conclusions, and his conclusion does not reflect a reasonable
interpretation of the record evidence as a whole.  As the trier of fact, the Judge must weigh the
evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence,
or vice versa.  In his whole person analysis, the Judge specifically listed numerous generally
applicable disqualifying and mitigating factors in some detail before concluding that they led to the
same result he reached when considering the more specific factors under Guidelines E and J.  It is
undisputed that Applicant deliberately falsified information about drug use on two separate security
clearance applications.  Given these facts, Applicant bears the burden of presenting evidence to
rebut, explain, extenuate, or mitigate that potentially disqualifying conduct, and had the ultimate
burden of persuasion as to obtaining a favorable security clearance decision.  The Judge’s conclusion
that Applicant failed to meet that burden is sustainable on this record.
In his appeal brief, Applicant requests that, if the Board concludes that the decision of the
Judge should be remanded, that the case be remanded with a recommendation that the case be
assigned to a different Judge.  The basis for the request is Applicant’s assertion that the Judge in this
case has proven in his decision that he is unwilling to apply any mitigating factors to this case, and
believes simply that there is no way to mitigate a falsification.  Applicant’s request could be
construed as an assertion of bias on the part of the Judge.
A party asserting a claim of bias against a Judge has a particularly high burden to satisfy on
appeal.  See, e.g., ISCR Case No. 99-0710 at 5 (App. Bd. Mar. 19, 2001).  Applicant has not met that
burden, in that he has not identified anything in the record that indicates a basis for a reasonable
person to conclude that the Judge was biased.
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Order   
The Judge’s unfavorable security clearance decision is AFFIRMED.
Signed: Jeffrey D. Billett         
Jeffrey D. Billett
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