KEYWORD: Guideline J; Guideline E
DIGEST: The Judge’s decision explicitly discussed Applicant’s explanations for his false
statements.  Given the record before him, the Judge’s adverse conclusions are sustainable. 
Adverse decision affirmed.
CASENO: 06-25322.a1
DATE: 07/03/2008
DATE: July 3, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 06-25322
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Todd C. Conormon, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On October 18, 2007, DOHA issued a statement of reasons (SOR) advising Applicant
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of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct) and
Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a hearing.  On May 24, 2008, after the hearing,
Administrative Judge Mark E. Curry 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 issues on appeal: whether the Judge erred in concluding
Applicant’s falsification of his security clearance application was deliberate; whether the Judge erred
by concluding that the security concerns raised under Guidelines J and E had not been mitigated.
(1) Applicant contends that he did not deliberately falsify his security clearance application
(SF-86) by failing to disclose that he had been court-martialed in 2003 for Burglary and Larceny of
Private Property, and was ultimately found guilty of Wrongful Appropriation.  In support of this
contention, he argues that the Judge gave insufficient weight to his explanations, and gave too much
weight to his Answer to the SOR, in which he had stated: “I admit to willfully omitting information
regarding court-martial proceedings while a member of the U.S. Army” because “this was an
extremely embarrassing time in my military career,” and that he had omitted the information “in an
attempt to obtain a security clearance.”  Applicant’s argument does not demonstrate that the Judge
erred.
The Judge’s decision explicitly discussed Applicant’s explanation as to why he failed to
disclose the information in question.  He 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 omissions
were deliberate and intentional.  The Board does not review a case de novo.  On this record, the
Judge’s finding of deliberate falsification is sustainable.  See Directive ¶ E3.1.32.1.
(2) Applicant also contends that the Judge erred in concluding that the security concerns
raised by his falsifications had not been mitigated, based upon the favorable record evidence,
particularly his lengthy military service, his many years of holding a security clearance without
adverse incident, and his favorable employment and character evidence.  Again, 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.
In this case, the Judge weighed the mitigating evidence offered by Applicant against the
recency and seriousness of the disqualifying conduct, and considered the possible application of
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relevant mitigating conditions and whole person factors.  The Judge reasonably explained why the
evidence which Applicant had presented in mitigation was insufficient to overcome the
government’s other security concerns.  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 clearance decision under Guidelines J and E is sustainable.
Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Michael Y. Ra’anan       
Michael Y. Ra’anan
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