KEYWORD: Guideline J
DIGEST: Although some of Applicant’s convictions were set aside, it was not due to insufficient
evidence of guilt.  Judge had a reasonable basis to conclude that Applicant had failed to mitigate
the security concerns in his case.  Adverse decision affirmed.   
CASENO: 07-04866.a1
DATE: 09/23/2008
DATE: September 23, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-04866
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 September 28, 2007, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct) of
Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant
requested a hearing.  On June 30, 2008, after the hearing, Administrative Judge David M. White
denied Applicant’s request for a security clearance.  Applicant filed a timely appeal pursuant to
Directive ¶¶  E3.1.28 and E3.1.30.
Applicant served as an undercover informant for the police.  Some of his convictions were set aside due to this1
cooperation with law enforcement.  Decision at 3.  See also Tr. at 47-53.  
Applicant raised the following issues on appeal: whether certain of the Judge’s findings of
fact are supported by substantial record evidence, and whether the Judge’s adverse security clearance
decision is erroneous.  Finding no error, we affirm.
The Judge made sustainable findings that Applicant had been arrested and convicted of
multiple offenses, including auto theft, leaving the scene of an accident, Driving While Intoxicated
(DWI), larceny, producing marijuana, and disorderly conduct.  Some of the convictions were set
aside, though for reasons other than insufficient evidence of guilt.   The most recent offense, in1
September 2005, was for a second offense of DWI.  As a result of this incident he was sentenced to
90 days in jail (87 days suspended), a $3,000 fine ($1,500 suspended), and probation until June 2009.
  
The Board has examined the Judge’s decision in light of the record as a whole.  The Judge
has drawn a rational connection between the facts found and his ultimate adverse security clearance
decision.  See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006).  See also 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 Judge’s decision that
“it is not clearly consistent with the interests of national security to grant Applicant eligibility for a
security clearance” is sustainable on this record.  Decision at 7.  See Department of the Navy v. Egan,
484 U.S. 518, 528 (1988).  In support of his appeal, Applicant submitted new evidence not contained
in the record, which the Board cannot consider.  “No new evidence shall be received or considered
by the Appeal Board.”  Directive  ¶  E3.1.29. 
Order
The Judge’s adverse security clearance decision 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