KEYWORD: Guideline J; Guideline G; Guideline H
DIGEST: Applicant failed to mitigate security concerns arising from incidents of DUI, Assault,
Domestic Violence, Possession of a Controlled Substance, among others.  Mere disagreement
with the Judge’s weighing of the evidence is not sufficient to establish error.  Adverse decision
affirmed
CASENO: 07-16210.a1
DATE: 10/20/2008
DATE: October 20, 2008 
In Re:
----------------
Applicant for Security Clearance
)
)
)
)
)
)
)
)
ISCR Case No. 07-16210
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 February 29, 2008, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct),
Guideline G (Alcohol Consumption) and Guideline H (Drug Involvement) of Department of Defense
Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.  On July
16, 2008, after the hearing, Administrative Judge Michael H. Leonard denied Applicant’s request
for a security clearance.  Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
The Judge’s favorable findings under Guidelines G and H are not at issue on appeal.
1
The Judge found that as of the date of the hearing, Applicant was still serving probation for his 2006 DUI
2
and still pending disposition of a charge for driving with a revoked license.
Applicant raised the following issue on appeal: whether the Judge’s adverse security
clearance decision under Guideline J is arbitrary, capricious, or contrary to law.1
Applicant argues that the favorable evidence in the record was sufficient, as a matter of law,
to mitigate any security concerns presented by Applicant’s conduct.  Applicant’s argument does not
demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law.
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 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.  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. 07-05632 at 2 (App. Bd. May 13, 2008).
In this case, the Judge found that between 1995 and 2006 Applicant had been involved in
seven criminal incidents, including Driving Under the Influence, Driving with a Suspended License,
Assault, Menacing, Domestic Violence, Possession of a Controlled Substance and Carrying a Pistol
in a Vehicle without a Permit.  A review of the record indicates that 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.  Decision at 6-7.
He reasonably explained why the evidence which the Applicant had presented in mitigation was
insufficient to overcome the government’s security concerns.  Id.   The Board does not review a case2
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).  The Judge examined the relevant data and articulated a satisfactory
explanation for his 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 adverse decision 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