KEYWORD: Guideline E; Guideline D; Guideline J
DIGEST: The Judge’s findings are based on substantial evidence or constitute reasonable
characterizations or inferences.  Applicant has not demonstrated that the Judge erred.  Adverse
decision affirmed.
CASENO: 07-09301.a1
DATE: 08/22/2008
DATE: August 22, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-09301
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 December 17, 2007, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision—security concerns raised under Guideline E (Personal Conduct),
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Guideline D (Sexual Behavior) 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 May 20, 2008, after considering the record, Administrative Judge
Mary E. Henry 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’s findings are based on
substantial evidence; whether the Judge erred in concluding that Applicant had deliberately falsified
his security clearance application; and whether the Judge’s adverse clearance decision under
Guidelines D, E and J is sustainable.
(1) Applicant argues that the Judge’s adverse clearance decision should be reversed because
the Judge erred with respect to several of his findings about the circumstances of Applicant’s
disqualifying conduct.  The Board does not find this 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).
After reviewing the record, the Board concludes that the Judge’s findings are based on
substantial evidence, or constitute reasonable characterizations or inferences that could be drawn
from the record.  Applicant has not identified any harmful error likely to change the outcome of the
case.  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).
(2) Applicant contends that he did not deliberately falsify his security clearance application
by failing to disclose that he had been asked to resign from his employment in 2004 in lieu of being
terminated.  In support of this contention, he argues that he misread the question at issue because he
was “. . . being rushed to get the form turned in.”  Applicant has not demonstrated that the Judge
erred.
Applicant elected to have his case decided on the written administrative record.  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’s 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 her, the Judge’s finding of deliberate falsification is sustainable.
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(3) Finally, Applicant argues that the Judge’s adverse decision should be reversed because
the Judge did not give sufficient weight to Applicant’s mitigating evidence as to positive changes
in his life since the occurrence of the disqualifying conduct.  This argument does not establish 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,
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. 06-17409 at 3 (App. Bd. Oct. 12, 2007).
In this case, the Judge weighed the mitigating evidence offered by Applicant against the
length and seriousness of the disqualifying conduct and considered the possible application of
relevant mitigating conditions and whole-person factors.  The Judge found in favor of Applicant with
respect to some of the SOR’s factual allegations.  However, the Judge reasonably explained why the
evidence 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. 06-11172 at 3 (App. Bd. Sep. 4, 2007).
After reviewing the record, the Board concludes that the Judge examined the relevant data and
articulated a satisfactory explanation for her decision, “including a ‘rational connection between the
facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States,
371 U.S. 156, 168 (1962). “The general standard is that a clearance may be granted only when
‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484
U.S. 518, 528 (1988).  Accordingly, the Judge’s ultimate adverse decision under Guidelines E, D and
J 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
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Signed: William S. Fields      
William S. Fields
Administrative Judge
Member, Appeal Board
Sihgned: James E. Moody       
James E. Moody
Administrative Judge
Member, Appeal Board