KEYWORD: Guideline H; Guideline E
DIGEST: The judge weighed the mitigating evidence offered by Applicant and reasonably
explained why it was insufficient to overcome the government’s security concerns.  Adverse
decision affirmed.
CASENO: 04-08651.a1
DATE: 12/10/2008
DATE: December 10, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 04-08651
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 May 29, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the
The Judge’s favorable findings under Guideline H and paragraphs 2(a) and (b) are not at issue on appeal.1
Applicant’s Brief at 1.2
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basis for that decision—security concerns raised under Guideline H (Drug Involvement) and
Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a hearing.  On September 30, 2008, after the hearing,
Administrative Judge LeRoy F. Foreman 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 adverse security
clearance decision under Guideline E is arbitrary, capricious, or contrary to law.1
Applicant asserts that he made false statements on his e-QIP and to government investigators
because disclosing his drug involvement was an issue for him due to feelings of embarrassment,
nonacceptance, and guilt.  It is his position that the Judge should have found the security concerns
presented by his conduct mitigated because disclosing his drug involvement is no longer an issue for
him due to the counseling he is receiving from his drug treatment program.    Applicant’s argument2
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).
A review of the record indicates that the Judge weighed the mitigating evidence offered by
Applicant against the seriousness of the disqualifying conduct and considered the possible
application of relevant conditions and factors.  Decision at 7-9.  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 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).  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.
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Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Jeffrey D. Billett     
Jeffrey D. Billett
Administrative Judge
Member, 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