KEYWORD: Guideline F; Guideline E
DIGEST: The Board cannot consider new evidence on appeal.  Adverse decision affirmed.
CASENO: 07-10396.a1
DATE: 10/02/2008
DATE: October 2, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-10396
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 November 21, 2007, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision—security concerns raised under Guideline F (Financial Considerations)
and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
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amended) (Directive).  Applicant requested a hearing.  On May 8, 2008, after the hearing,
Administrative Judge Erin C. Hogan 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’s unfavorable clearance
decision under Guideline F is arbitrary, capricious, or contrary to law.
Applicant asks that the Judge’s adverse clearance decision be reversed.  In support of that
request, Applicant states that since the hearing he has transferred to a new job at another company
and has received a substantial pay raise.  This new increase in pay has allowed him to re-enter the
Consumer Credit Counseling Services Program, and to qualify for the California Child Support
Division’s Compromise of Arrears Program.  He argues that participation in these programs will
mitigate the security concerns raised by his financial problems.
The Board cannot consider Applicant’s new evidence on appeal.  See Directive ¶ E3.1.29.
Given the totality of the record evidence, Applicant’s submission on appeal does not demonstrate
that the Judge’s decision is arbitrary, capricious, or contrary to law.
Once there has been a concern articulated regarding an applicant’s security eligibility, there
is a strong presumption against the grant or maintenance of a security clearance.  Dorfmont v. Brown,
913 F. 2d 1399, 1401 (9  Cir. 1990), cert. denied, 499 U.S. 905 (1991).  After the governmentth
presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.
Directive ¶ E3.1.15.  The application of disqualifying and mitigating conditions does not turn simply
on a finding that one or more of them apply to the particular facts of a case.  Rather, their application
requires the exercise of sound discretion in light of the record evidence as a whole.  See, e.g., ISCR
Case No. 01-14740 at 7 (App. Bd. Jan. 15, 2003).  “Thus, the presence of some mitigating evidence
does not alone compel the Judge to make a favorable security clearance decision.”  See, e.g.,  ISCR
Case No. 05-02833 at 2 (App. Bd. Mar.19, 2007).  “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.  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. 05-03143 at 3 (App. Bd. Dec. 20, 2006).
In this case, the Judge found that Applicant had a serious history of not meeting financial
obligations.  At the time the case was submitted for decision he still had significant outstanding debts
and was still in the process of trying to resolve his financial problems.  In light of the foregoing, the
Judge could reasonably conclude that Applicant’s financial problems were recent and still ongoing.
See, e.g., ISCR Case No. 07-10312 at 2 (App. Bd. Jul. 15, 2008).  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 conditions and factors.  She found in favor of
Applicant under Guideline E and as to some of the SOR allegations under Guideline F.  However,
she reasonably explained why the mitigating evidence was insufficient to overcome all of the
government’s security concerns.  The Board does not review a case de novo.  After reviewing the
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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)).  Therefore, the Judge’s ultimate unfavorable security clearance decision under Guideline
F 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
Chairman, Appeal Board
Signed: Michael D. Hipple   
Michael D. Hipple
Administrative Judge
Member, Appeal Board
Signed: William S. Fields     
William S. Fields
Administrative Judge
Member, Appeal Board